Social, people and immigration aspects to consider Social, people and immigration aspects to consider

Below is an overview of social, immigration and people aspects to consider during the Coronavirus outbreak, including, but not limited to, working patterns, travel restrictions and immigration processes for third country nationals. 

The majority of business travels, meetings, conferences, project work and related activities have been canceled and home work is strongly advised by the Belgian authorities. As a result, a temporary but significant change in a person’s working pattern might have implications on the applicable social security legislation. Below is an overview of certain social security considerations.

EU Regulations

The EU Regulations on the coordination of social security continue to apply. However, in a guidance¹ published on 30 March 2020, the European Commission confirmed however that they encourage the practice of individual Member States to put in place administrative arrangements and guidance between their public authorities in order to simplify procedures in the field of social security and for the benefit of mobile workers (see below).

Except for 2 exceptions (see below), the work state principle and the principle of a single applicable legislation applies to employed/self-employed persons whereby the worker is subject to the social security legislation of the country where the professional activity is performed.

The 2 exceptions to this work state principle are:

1. Temporary posting;
2. Tie-breaker rules in situations of structural multi-state employment (whereby at least 5% is performed in another EEA Member State/Switzerland; to be assessed per country in a 12 month reference period). 

Up to 25% working time in country of residence: subject to the social security scheme of country of residence. 

More than 25% working time in country of residence: subject to the social security scheme of the country where the employer is located.

Unilateral position of the Belgian social security authorities

Periods of teleworking exercised on the Belgian territory by cross-border workers due to the measures taken in the framework of the coronavirus will, exceptionally, not be taken into account when determining the applicable social security legislation. In other words: 

• No action required by the employee/employer;
  
• Issued A1 documents remain valid;
• No Posted Workers notification (Limosa) required (teleworking);
• Position is currently valid for the period from 13 March 2020 until 31 December 2020 or until a different policy point of view is adopted. The period can be extended;
• Normal working patterns to be resumed after the crisis.
• Other EU Member States such as France, Germany, the Netherlands and others have taken similar positions to the same or similar extent.

Recommendations on how to formalize the situation after the Coronavirus crisis

• Safeguarding (future) social benefits by means of (existing) official documents (A1, S1, others)
  
• Focus only on individuals for whom the applicable law changes as a result of remote work during COVID-19
• European Regulations foresee possible ‘solutions’ to formalize the situation during the Coronavirus crisis:

‘Wait and see’: assess the multi-state employment situation at the end of the changed working pattern retroactively and apply for an exceptional agreement between member states

Apply for an A1 temporary posting in case of temporary telework in home country

• Consider each situation of international mobility on a case-by-case basis, taking into account the position(s) of the Member State(s) involved as these may foresee a pragmatic approach which might fit your situation.

For more information on measures taken by the social security authorities, please consult our overview page on corona measures taken by the Belgian federal authorities or contact us.

General rules applicable in Belgium since 2 November 2020:

With respect to social life:

• 1 cuddle contact (= close contact) allowed outside of the family unit;
• Gatherings outdoors are limited to 4 persons;
• Curfew for public areas from midnight to 5 am in the Flemish Region and from 10 pm to 6 am in the Walloon and Brussels Region. Employers can provide an attestation for employees who need to move around during the curfew.

With respect to economic life:

• Homeworking is mandatory. If it is not possible to work from home, measures should be taken to guarantee the safety of the employees. Employers are obliged to deliver an attestation to employees confirming that they cannot work from home;
• Closure of non-essential shops, cafés, restaurants and recreational establishments. Takeaway service can be offered;
• A complete list of essential and non-essential establishments can be found in the publication of the Belgian Gazette of 1 November 2020;
• Travelling abroad is strongly discouraged but not banned.

The above rules are applicable for every citizen or visitor in Belgium from the age of 12. The complete list of rules can be found on the official corona website.

In addition to the above rules, there are some region-specific rules to be considered:

The complete list of rules can be found on the websites of the Flemish Region, Brussels Region and Walloon Region.

In addition to the rules implemented by the Federal and Regional authorities, local rules may apply.

Belgian testing strategy as from 26 October 2020 until at least 19 November 2020:

The Federal Public Service of Foreign Affairs has categorized destination countries (and sometimes regions within countries) into green, orange and red zones:

• Green: Travelling to green zones is allowed (but strongly discouraged);
• Orange: Travelling to orange zones is allowed (but strongly discouraged) and the Belgian authorities recommend increased vigilance and/or the destination country imposes additional measures (for instance quarantine);
• Red: Travelling to red zones is strongly discouraged unless for essential reasons of travel or the country prohibits non-essential travel from Belgium.

The map on the website of the Federal Public Service Foreign Affairs is updated regularly and should be consulted before travelling.

Sanitary and health measures

The Federal Public Service of Foreign Affairs has categorized countries of origin (and sometimes regions within countries) into green, orange and red zones.

• Green and orange: no test or mandatory quarantine;
• Red: travelers returning from red zones who have been abroad for more than 48 hours or who will stay in Belgium for more than 48 hours are considered ‘high-risk contacts’ and should go into quarantine for 10 days. Only people with symptoms are currently being tested. See above for Belgian quarantine and testing strategy.

All persons travelling to Belgium by airplane or boat should complete the Passenger Locator Form (PLF). Passengers travelling to Belgium by car or public transport for more than 48 hours or returning following a stay of more than 48 hours abroad are also obliged to complete the PLF.

The form also includes a self-assessment questionnaire. Based on the result a text message will be sent with instructions concerning testing and quarantine.

No text message is sent if the traveler (by boat or airplane) returns from a stay of less than 48 hours and no quarantine or testing is imposed.

Who can travel to Belgium?

EU citizens and citizens of Schengen associated states and third-country nationals legally residing in the European Union, as well as their family members (if they hold a valid Belgian residence permit or visa), regardless of whether or not they are returning home are allowed to travel to Belgium.

The following categories of travelers can travel to Belgium from a third country:

• healthcare professionals, health researchers, and elderly care professionals;
• frontier workers;
• seasonal workers in agriculture;
• transport personnel engaged in haulage of goods and other transport staff, to the extent necessary;
• diplomats, staff of international organizations, military personnel, and humanitarian aid workers in the exercise of their functions;
• passengers in transit;
• passengers travelling for imperative family reasons (further clarified as family reunion procedures, non-cohabiting long term partners, co-parents, funerals or marriages for first- or second-degree family members);
• see farers;
• persons in need of international protection or for other humanitarian reasons;
• third-country nationals travelling for the purpose of study;
• third country workers who are authorized by the competent region to work as an employee or as a self-employed in Belgium.

Third-country travelers with an essential function or need to travel to Belgium should always first obtain the proper travel documents:

• third-country travelers with an essential function or need to travel to Belgium for more than 90 days should always first obtain a valid D visa;
• travelers who benefit from the Schengen visa waiver and who have an essential function or need to travel to Belgium for less than 90 days are not required to obtain a valid C visa but should always first obtain an ‘essential travel certificate’. This certificate is issued by the competent consular authority after verifying the nature of the travel;
• travelers who do not benefit from the Schengen visa waiver and who have an essential function or need to travel to Belgium for less than 90 days should always first obtain a C visa. If the visa has been issued before 18 March 2020, an ‘essential travel certificate’ should be obtained too.

An essential travel certificate is not required if it is clear from the travel documents that the travel is essential (for example: plane ticket for transit passengers, diplomatic passport for diplomats, etc.)

Federal Immigration Office and Town halls – Right to stay

Third country nationals holding a Belgian residence permit should take the necessary steps to extend their residence permit within 45 to 30 days of the expiration date. Most communes have (partially) re-opened for business or still accept to deliver a temporary document, i.e. Annex 49 for employees and Annex 15 for their families, which confirms the legal right to reside and work in Belgium. This temporary document is usually provided by email.

Annex 49 and Annex 15 are valid for a period of 90 days. The Annex will allow the third country national to reside and work legally in Belgium pending the issuance of their actual hard copy residence permit.

Annex 49 and Annex 15 do not allow travel in and out of Belgium and are only valid within Belgium.

In addition, third country nationals have the right to apply for an extension of their right to stay in Belgium, if they are unable to leave the country due to “force majeure”.

Third country nationals who are unable to return to their home country and whose current right to stay is expiring can ask their local town hall to issue a temporary ‘declaration of arrival’ (Annex 3). This document will entitle them to legally stay in Belgium for 2 months as from the expiration date of their current permit.

The European Commission encourages Member States to waive administrative sanctions or penalties on third country nationals unable to leave their territory due to the travel restrictions. Overstays due to travel restrictions should not be taken into account during the processing of future visa applications.

Important note: The ‘declaration of arrival’ in itself does not allow a person to work in Belgium, regardless of whether the individual is working in Belgium for a foreign or local employer. Work authorizations need to be obtained in addition through the competent Regional authority of the place of work of the individual (see our comments below).

• More information in Dutch.
• More information in French. 

KPMG is authorized by all three regional authorities to apply and renew work permits B and Single Permits electronically. The authorities have confirmed that they will continue to process all applications that have been and will be filed.

All three regions have confirmed the easing of some rules:

• standard procedure prescribes that the employer needs to respond within 15 calendar days to requests for additional information from the authorities, otherwise the file will be rejected. 

However, to accommodate longer document collection processes by employers due to the COVID-19 outbreak, the Flemish, Brussels and Walloon authorities have decided not to reject the application if the employer is unable to provide the requested information within 15 days. The file will remain pending with authorities until the employer is able to provide the requested documents or information.

• as a result of the COVID-19 outbreak, many employers will decide to put their employees on temporary unemployment due to “force majeure” or for economic reasons. This is a specific form of unemployment installed by the company, which is temporary and entitles the concerned employee(s) to obtain an unemployment allowance from the authorities during the period of unemployment. The allowance in the framework of temporary unemployment is available for employees subject to Belgian social security. 

The Flemish, Walloon and Brussels authorities have decided that they would take a lenient approach towards the minimum salary thresholds in situations of temporary unemployment for individuals who are temporarily unemployed.

In addition, the Flemish region has given the possibility to obtain the right to work for third country nationals who are temporarily unable to leave Belgium due to “force majeure” and who have obtained the right to stay (see above):

• Work permit B for a maximum of 3 months employment in Belgium:

After obtaining the ‘declaration of arrival’ (see above), the employer, or its mandate holder, can submit an application for a work permit B with a validity of maximum three months. The application will have to include the required information and documents for a standard work permit B application. This is an exceptional fast track procedure and the work permit B will be delivered rapidly by email. 

It is not possible to extend a work permit B. A Single Permit can be applied for should an extension of the right to work in Belgium be needed.

• Single Permit for more than 3 months employment in Belgium:

After obtaining the ‘declaration of arrival’, the employer, or its mandate holder, can submit an application for a Single Permit with a maximum validity of 3 years. The application will have to include the required information and documents for a standard Single Permit application.