Annual leave and unfitness for work: European Directive 2003/88 has (finally) been transposed!

As of 1 January 2024, an employee who becomes unfit for work during an annual leave period or who cannot take annual leave because of certain work stoppages will be able to take those leave days at a later date.

Scope of application

Wage earners (manual workers, non-manual workers) (as well as apprentices and trainees partially subject to the NSSO) may carry over the days of statutory annual leave accrued (during the vacation qualifying year) in the following cases of suspension of the employment contract:

• accident at work or occupational illness,
• accident or illness in the private life,
• maternity leave,
• paternity leave within the meaning of the Labour Act of 16 March 1971,
• breastfeeding leave,
• paternity leave within the meaning of the Employment Contract Act of 3 July 1978,
• adoption leave,
• foster care leave within the meaning of article 30quater of the Employment Contract Act of 3 July 1978,
• foster leave within the meaning of article 30sexies of the Employment Contract Act of 3 July 1978.

Employment contract: suspension occurring during a period of annual leave

Principle

In the event of a suspension (see list above) of the employment contract during a period of statutory (individual or collective) annual leave, the days of suspension are not deducted from the annual leave: the employee may request to carry over and take the leave days concerned at another time in the current holiday year.

Further provisions

The new dates for taking the carried over annual leave are set according to the customary rules in force in the company.

Inability to take annual leave due to suspension of the employment contract

Principle

An employee who, at the end of the holiday year, is unable to take all or part of the accrued annual leave days (due to a suspension of the employment contract mentioned above) has the possibility of carrying over these days to a later time during the 24 months following this holiday year.

Example: the employee becomes ill on 6 October 2024 and is unfit for work for three months. On that date, the employee still has a balance of 7 annual leave days, which he or she thus cannot take before 31 December 2024. He or she will be able to carry over and take those days during the period running from 1 January 2025 to 31 December 2026.

During a holiday year, an employee can therefore benefit from more than 4 weeks of leave, i.e. the 4 weeks of annual leave that he or she has accrued (during the previous holiday qualifying year) plus the leave days carried over from a previous holiday year.

Further provisions

That right to carry over leave days may be exercised with any employer with whom the employee is employed during that 24-month period. But the holiday pay is payable by the employer with whom the employee is employed on 31 December of the year (in which he or she was unable to take the leave days), and must be paid no later than that date.

The new dates for taking the carried over annual leave days are set according to the customary rules in force in the company.

We are still awaiting further implementing measures (for example, regarding the notification of the incapacity to the employer or the desire to exercise this right to retain leave days). We will keep you updated on the situation.

Sources: Directive No. 2003/88/EC of 4 November 2003 concerning certain aspects of the working time organisation (OJ L 299 of 18 November 2003) - Royal Decree of 8 February 2023 amending Articles 3, 35, 46, 60, 64, 66 and 68 and inserting an Article 67bis in the Royal Decree of 30 March 1967 laying down the general implementing arrangements of the laws concerning workers' annual leave (Belgian Official Gazette of 16 March 2023)