New formal obligations in case of incapacity during paid annual leave

As published in a previous article, Belgium is now in line with the European Working Time Directive when it concerns the non-loss of holidays when employees fall ill during their holidays. The two major novelties are mainly the transfer of holidays and the change in rules in case of concurrence of annual leave with certain days of work suspension. Below, the focus lies on the formal requirements laid down in the recent Act of 17 July 2023.

As for employees, they must fulfill three obligations in order to validly transfer untaken days of paid leave.

Firstly, there is a notifying obligation whereby the employee lets it be known that he/she is incapacitated and hereby specifies the residence address in the event that he/she is not located at his/her home address. For instance, when the employee is abroad to enjoy holidays.

Secondly, a medical certificate must be provided within two workdays from the day of incapacity or the day of receipt of the employer’s request, unless a different period is stipulated by collective agreement or by the work rules. Hereby, the Belgian exception that employees are exempted up to three times a calendar year from submitting a medical certificate for the first day of incapacity does not apply.

The medical certificate must state:

• the employee’s incapacity for work and;
• the probable duration of incapacity;
• whether or not the employee is allowed to move to another place for the purpose of control.

A specific model of medical certificate for incapacity for work occurring during a period of annual leave could be published by the government, but the use of this model is optional.

In case of force majeure, for instance in the event of hospitalisation, the employee must provide the medical certificate within a reasonable term. This must be assessed in concrete terms, depending on the situation. However, in light of the spirit of the law, this implies that the employee must fulfill this duty to give notice as soon as he is practically capable to do so. Certainly, a reasonable time cannot unfailingly be interpreted as a period of two days starting from the moment of hospital discharge. After all, an employee may be accommodated in the hospital in a condition that does not affect the capability to give notice. This is in line with the opinion of the National Labour Council stating that the employee can notify the employer by providing clear proof of a hospitalisation within a reasonable time.

Thirdly, no later than the day on which the employee delivers the medical certificate, he/she also informs the employer of his/her wish to carry over untaken days of paid leave to the end of his/her incapacity to work. The employer has the right to refuse this, e.g. if this does not possible in light of the organization of the work. It could be possible that at that moment, other workers already would be on annual leave which would mean that the company or team risks to be understaffed. However, in any case the employee retains the right to use these (untaken) days of annual leave at a later moment.

As for employers, they must include the above-mentioned formalities in the internal work rules as of 1 January 2024. However, these new provisions may be incorporated without having to follow the normal procedure of amending the internal work rules (so it is not necessary to consult the works council or the employees). However, we do recommend to inform the employees of these changes. Not amending or amending the internal work rules incorrectly could, in theory, result in a penal fine of minimum 400 EUR to 4.000 EUR or in an administrative fine of minimum 200 EUR to 2.000 EUR, which corresponds to a sanction of level 2 provided in the Social Penal Code. However, it is unlikely that this will be enforced.

Further, in the event of collective closure, the National Labour Council urges employers to provide clear information on how employees could contact the employer during the period of closure. This recommendation is not mentioned by the Act of 17 July 2023 and therefore it is not legally required to do so.

In addition, referring to our previous article, the holiday pay of the transferred holidays must be paid during the current holiday year (even if these days are taken during a later year).

Finally, the existing control procedures in case of illness or accident remain applicable to the specific case of illness or accident occurring during holidays.

Takeaways:

• Employers must provide these new formalities in their internal work rules as of 1 January 2024.
• The exemption for medical certificates for the first day of incapacity does not count in case of an illness/medical incapacity during the period of annual leave.
• Employees must inform the employer if they wish to transfer their annual leave days to the end of the incapacity, however, the employer can refuse this (based on valid grounds).

Sources:

The Act of 17 July 2023 amending the Act of 3 July 1978 on employment contracts and the Act of 8 April 1965 establishing internal work rules regarding the concurrence of annual leave and incapacity of work

Preparatory work