Incapacity for work during annual leave
On 13 July 2023, the Chamber approved the act providing for the labor law framework for an incapacity for work due to illness or accident that occurs during the employee's annual vacation.
Indeed, earlier this year, the legislation related to annual leave was already amended in order to be in accordance with the so-called European Working Time Directive of 4 November 2003.
Regarding these changes to the legislation related to annual leave, the NLC recommended providing for a specific labor law framework. The act implements this.
The entirety of the new rules will apply for the first time to the vacation year 2024, vacation service year 2023.
Preliminary: amendment vacation legislation
Under the Working Time Directive, member states must take the necessary measures to ensure that all employees have at least four weeks of paid annual leave.
Belgian legislation was not in compliance with the Directive on this point. The following points were amended by the Royal Decree of 8 February 2023, amending the Vacation Decree of 30 March 1967. These amendments were published in the Belgian Official Gazette on 16 March 2023.
Under the current rules, the employee must have taken his/her vacation by 31 December of the vacation year (the year in which the employee takes the vacation, which follows the vacation service year during which the vacation rights are accrued). In addition, the vacation legislation stipulates that statutory vacation may not exceed four weeks.
As of 2024, the employee who, at the end of the vacation year, is unable to take his/her vacation days due to certain work interruptions (including illness) will have the possibility to carry over and take these vacation days up to 24 months after the end of the vacation year. In the exhaustively listed cases (work accident and occupational disease, ordinary accident and illness, maternity/paternity leave, prophylactic leave, birth leave, adoption leave, foster care leave/foster parent leave), the transfer is even mandatory. As a result, statutory vacation may exceed four weeks. The principle thus remains the same, but exceptions are provided for from 2024 onwards.
However, the holiday pay relating to the vacation days still to be taken within the 24 months must be paid by the employer no later than 31 December of the original vacation year. In other words, it is an advance payment of the vacation days carried forward.
In addition, the rules on charging in case of concurrence of annual vacation days with certain days of work interruption (such as illness) have been changed. As of 2024, sick days will not (no longer) be charged to the annual vacation, in case of illness during the vacation. Consequently, these vacation days can be converted into sick days. The vacation days can then be taken at a later date so that they are not lost.
Labor law framework vacation legislation
The act amends both the Employment Contracts Act, and the Work RulesAct.
From 2024, the following rules apply if an employee becomes ill during a period of annual leave:
|Notification of the incapacity for work and residence address||The employee is required to immediately notify his/her employer of his/her incapacity for work and of his/her residence address if he/she is not at the home address.|
|Submission of medical certificate||
The employee shall submit a medical certificate to the employer within 2 working days from the day of incapacity or the day of receipt of the employer's request, unless a different deadline is set by collective bargaining agreement or by thework rules. In cases of force majeure, the employee shall submit the medical certificate within a reasonable time.
The medical certificate should mention:
A specific model of medical certificate would be established for incapacity of work occurring during a period of annual leave. However, the use of this specific model is optional.
! Please note: The medical certificate must always be presented in case of incapacity for work during annual leave, even if it is not required at sectoral or company level and regardless of the exemption to present a medical certificate three times per calendar year for the first day of incapacity for work.
|Notification||No later than the time of submission of the medical certificate, the employee shall expressly notify the employer that he/she wishes to carry over and take at a later date the vacation days coinciding with incapacity for work.|
These new formalities must be mentioned in the work rules. However, the new provisions may be included without having to follow the normal procedure of amending thework rules.
For vacation year 2023, nothing will change. The old rules will continue to apply.
As of vacation year 2024, the new rules will apply for the first time. From 1st of January 2024, all employers must therefore include in the work rules the new formalities to be complied with in the event of incapacity for work due to illness during annual leave.