Annual leave days and the end of the year: which rules must be observed?

Author: Catherine Legardien (Legal Expert)
Date:

The end of the year is approaching and many of you have reached the same conclusion: some of your employees still have to take a lot of days of leave before the end of the year.

This is the perfect opportunity to remind you of some important rules concerning the allocation of leave days.

Agreement between the employer and the employee

In the absence of a joint committee or company agreement, the period of leave has to be determined based on an individual agreement between you and each employee.

The employee can therefore never unilaterally impose the date of his leave on you. Conversely, you cannot force your employees to take leave on dates that suit you.

No carry-over of leave days to the following year

Days of leave must be allocated before 31 December 2021, it is therefore prohibited to carry over leave days not taken in 2021 to 2022, even if you and the employee agree!

We also repeat that the following rules apply:

  • granting of days of leave to employees with school-age children, preferably during school holidays;
  • granting of a continuous period of 2 weeks between 1 May and 31 October (3 weeks for employees under the age of 18 on 31 December 2020), unless otherwise requested by the employees concerned. In any case, a continuous holiday period of one week must be guaranteed;
  • prohibition to take half-days of leave, except when:
    • the half days of leave are completed with half a day of normal rest;
    • the employee asks for 3 days in the fourth week of leave to be split into half days; however, you can refuse this if that would disrupt the work organisation.

The employee cannot waive his entitlement to leave days

An employee is prohibited from waiving days of leave to which he is entitled. The fact that the employee does not make use of his leave does not mean that you cannot regularly see to it that your employee actually takes all his leave before 31 December 2021.

If you cannot impose leave dates on him, you can still avoid problems by informing him in writing of his obligation to take all his leave days before the end of the year and asking him to schedule his remaining leave days.

Payment of holiday pay in case of inability to take his days of leave

If the employee is unable to take all or part of the leave to which he is entitled in 2021 before the end of the year due to force majeure or a suspension of the performance of his contract (e.g. in case of illness or childbirth), he forfeits the entitlement to the leave days. Remember, these may not be carried over to the following year.

If it regards a non-manual employee, you will still have to pay him the holiday pay for the leave days not taken by 31 December of the holiday year at the latest.

If it regards a manual employee, the days of leave that are not taken are covered by the holiday voucher he has already received from the ONVA/RJV.

Please note! The introduction by the employer of periods of economic unemployment or temporary unemployment due to force majeure COVID-19 (simplified procedure) must not prevent the employee from taking all the leave days to which he is entitled. In addition, the ONEm/RVA stipulates that all paid leave days to which the employee is entitled must be taken in the course of the year and at the latest in the month of December. Otherwise, no temporary unemployment benefit can be granted for the balance of these days of paid leave.

What about extra-legal days of leave and paid reduction of working time?

Extra-legal leave days (grade related days, seniority leave, etc.) and days of working time reduction (RTT/ADV) must in principle always be taken by mutual agreement between you and the employee.

In addition, for the taking of extra-legal leave days, reference should be made to the provisions stipulating this, either at the level of the sector of activity or at the level of the company.

The days of working time reduction (RTT/ADV) must be taken before the end of the year to ensure that the average weekly working time is observed.

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