Teleworking for cross-border workers: Social security developments and way forward as from 2023
07/10/22
Where do we stand right now?
The COVID-19 crisis has created a need to relax the rules provided under Regulation (EC) 883/2004 (Regulation) coordinating the social security systems in the European Union (EU), the European Economic Area (EEA) and in Switzerland - in particular at the level of those teleworkers residing in a different State than where their employer is established. In fact, applying strictly the provisions of Article 13 of this Regulation for the purposes of determining the applicable legislation could have triggered unintended social security consequences for those teleworkers, due to having the famous 25% limit of working time authorised in the country of residence (around one day per week) temporarily exceeded as a result of teleworking during the COVID-19 crisis. In such circumstances, they would be obliged to exit the social security legislation of their country of employment to switch to the one of their countries of residence.
Looking at the situation of the Luxembourg cross-border workers who represent the biggest population of that kind in Europe (currently made up of more than 210,000 individuals), a large number of people would have been penalised together with their respective employers, along with the competent authorities in Luxembourg and in the neighbouring countries (France, Belgium and Germany) who would have had to deal with significant administrative complications and financial consequences as a result of the change in the applicable legislation. Consequently, and considering the exceptional situation, at the beginning of the COVID-19 crisis, the Administrative Commission for the coordination of social security systems in the European Union (the AC) published flexible guidance to avoid hardship and protect cross-border teleworkers by freezing the application of the Regulation.
During this past summer, the AC has however published a guidance note on telework indicating that “On 1 July 2022, the force majeure will no longer be a valid legal basis”, which entails application of the Regulation again from this date. Nevertheless, in the same note, the AC acknowledges that individuals have realised advantages with telework during the COVID-19 crisis and that telework “ will remain, to a certain extent, a way of working”, which needs to have a legal framework. As a result, the AC decided to introduce transitional measures applying until 31 December 2022. During this period, the same flexibility as before will apply in order to give time to employers/employees to organise, but probably also for the AC to include telework within the scope of application of the Regulation and/or related guidance. It is important to note that this transitional regime does not apply in respect of the taxation of cross-border wages, which is based on applicable tax treaties and related agreements.
The way forward starting in 2023
The guidance note on telework, as revised by the AC on 14 June 2022, includes a chapter dedicated to the legislation applicable to teleworkers, and elaborates on how the current legal framework related to Article 12 (dedicated to posted worker i.e. an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis), Article 13 (dedicated to multi-state workers i.e. an employee who normally pursues an activity as employed person in two or more EU Member States) and Article 16 (dedicated to mutual agreements) of the Regulation should be interpreted with respect to telework going forward.
Based on this note, which may be revised again in the coming months, one should distinguish between the following situations:
1) Random and unpredictable telework
Random and unpredictable telework should be covered by Article 12 of the Regulation. On this basis, and to the extent that the conditions for posting are met, the posted worker could remain insured under the legislation of the country of employment while performing part of this duties from home.
Example of situations of telework which would be authorised, as quoted in the note:
- “An employee stays at the holiday place and starts to telework there for another month before returning home and resuming work in the office.”
- “An employee agrees with the employer that s/he will telework during the following four weeks to better concentrate on a specific project.”
- “The employee can only continue to work from home, because e.g. s/he has to care for sick children, aged relatives, small children, or is the partner of such a person.”
However, the note does not specify the related practical modalities to be handled, namely with respect to the application for A1 statements, in the context of these specific situations of teleworking.
2) Telework which is part of the “habitual working pattern”
Telework which is part of the “habitual working pattern” should be covered by Article 13 of the Regulation. To assess the applicable legislation, the 25% criterion should be interpreted in a flexible and more adequate way as "telework constitutes a new reality for workers and employers". The AC further comments that "This flexible solution adjusted to telework could avoid disadvantaging frontier workers in border regions, who otherwise would be restricted in their possible implementation of hybrid work compared to national workers."
The AC guidance note does not clearly specify the scope of the “flexibility” that the Member States will apply with respect to the assessment of the 25% limit.
Example of situations of telework which would be authorised, as quoted in the note:
- “A switch between work at the premises of the employer and telework on a weekly basis”
- “Longer intervals are foreseen”
- “A more flexible arrangement: e.g. the employee is allowed to telework when the nature of the work to be carried out allows it, or e.g. during a maximum number of days of telework per year”
Practically, there should be no change in the administrative formalities to be carried out for employees covered by the Article 13 of the Regulation, ie. as from January 2023 employers would have to submit a request to the competent institution of the individual’s country of residence for determining the applicable legislation and obtain an A1 statement certifying the applicable legislation.
3) Other new and atypical cases
Other new and atypical cases should be covered by Article 16 of the Regulation related to mutual agreements.
Different possibilities are quoted such as individual agreements, groups of persons agreements, multilateral agreements (involving more than two Member States), or even EU-wide agreements on specific parameters. Examples of individual agreements which would be permitted would be “telework due to family reasons such as hospitalisation of a relative or need for constant or increased care of a relative” and “telework with the aim of facilitating the exercise of the activity by people with disabilities''.
Practically, the note specifies that "Individual Article 16 agreements have to be administered via the EESSI-system", without giving further details.
Conclusion
We observe that the AC privileges, at this stage, a smooth interpretation of the provisions of the Regulation to define the legislation applicable to teleworking, without revisiting the 25% limit but interpreting in a more flexible way the existing legal framework included in the Regulation in respect to telework.
As the guidance of the AC is evolutive and discussions are still ongoing during the current transitional period, it may be anticipated that rules will develop in the direction of providing more flexibility with respect to cross-border teleworking going forward.
It would be interesting to see whether the Member States will also decide to redefine another percentage and agree to enshrine a dedicated legal framework for the cross-border teleworkers as from 2023, considering the complexity in applying the current rules to them.
