Bereavement leave: new developments in sight

Author: Catherine Legardien (Legal Expert)
Date:

On 17 June, the Chamber passed a bill providing for significant changes to the right to bereavement leave (leave of absence), mainly with regard to the duration of the leave that workers can take in the event of the death of their spouse or child.

What does the current regulation provide for?

In the event of the death of the spouse (or legal cohabitant) or of a child of the worker or of his/her spouse (or legal cohabitant), the worker is currently entitled to 3 days of leave of absence (paid by the employer) to be freely chosen in the period from the day of death until the day of the funeral.

Important note! A longer period may be provided for by a provision contained in a collective agreement (CLA) at the sector or company level, in the employment regulations applicable in the company or in the employment contract.

What does the bill provide for?

Duration

The bill provides that in the event of the death of the spouse or cohabiting partner, of a child of the worker or of his/her spouse or cohabiting partner, the duration of the absence is 10 days (paid by the employer) of which:

  • 3 days to be chosen by the worker during the period starting with the day of death and ending on the day of the funeral and
  • 7 additional days to be chosen by the worker within one year from the day of death.

At the worker's request and with the employer's agreement, the two periods in which these days must be taken can be deviated from.

These rules also apply in the event of the death of a foster child in long-term foster care (see below for definition) at the time of death or in the past.

What in the event of incapacity for work following bereavement leave?

Principle

The bill also provides for specific provisions in the event of a period of incapacity for work (other than an occupational disease) or of an accident (other than an occupational accident or an accident on the way to or from work) that follows a period of absence (leave of absence) due to the death of the spouse or cohabiting partner, of a child of the worker or of his/her spouse or cohabiting partner.

In that case, the days of leave of absence, as from the 4th day, will be charged against the period of the guaranteed wage, on condition that this 4th day follows a 3rd day of leave of absence.

This rule applies to both manual and non-manual workers and domestic servants.

Example: A non-manual worker takes 10 days (3 days + 7 additional days) of leave of absence due to the death of his child. The worker is then incapacitated for work for 25 days.

For the 10 days of leave of absence, the non-manual worker maintains his remuneration at the expense of the employer.

Since a period of incapacity for work follows the10 days of leave of absence, the additional 7 days of leave of absence can be charged against the period of the guaranteed wage.

Since the incapacity for work lasts 25 days, it exceeds the 23-day period of the guaranteed wage (30 days - 7 days). Consequently, the non-manual worker will receive incapacity benefits from the health insurance fund from the 24th day (and not from the 31st day).

What if workers already have more than 3 days of bereavement leave?

If a provision contained in a CLA at the sector or company level, in the employment regulations applicable in the company or in the employment contract currently provides for a higher number of days of leave of absence than the number provided for in the current regulations (3 days), these additional days will not be charged against the period of the guaranteed wage if the period of leave of absence is followed by a period of incapacity.

Example: a sectoral CLA provides for 2 additional days of leave of absence in case of the death of a child of the non-manual worker, bringing the bereavement leave to 5 days. If the non-manual worker chooses to take the 10 days of leave of absence (to which he is entitled under the bill) and then becomes incapacitated for 27 days, he will be entitled to:

  • 5 days of leave of absence with full pay;
  • 5 additional days of leave of absence with full pay, but charged against the period of the guaranteed wage;
  • 25 days of guaranteed wage;
  • 2 days of incapacity benefits at the expense of the health insurance fund.

Since the incapacity for work lasts 27 days, it exceeds the 25-day period of the guaranteed wage (30 days - 5 days). Consequently, the non-manual worker will receive incapacity benefits from the health insurance fund from the 26th day (and not from the 31st day).

Summary table

In addition to an important change in the duration of bereavement leave in the situation mentioned above, the bill provides for other minor adjustments. The table below shows the duration of absence for those reasons for absence related to death that entitle you to leave of absence.

Important note! A longer duration may be provided for by a provision contained in a CLA at the sector or company level, in the employment regulations applicable in the company or in the employment contract.

Reason for absence

Duration of absence

Death of the spouse or cohabiting partner, of a child of the worker or of his/her spouse or cohabiting partner or death of a foster child in long-term foster care at the time of death or in the past

10 days, of which 3 days to be chosen by the worker during the period starting with the day of death and ending on the day of the funeral and 7 additional days to be chosen by the worker within one year from the day of death (1)

Death of the father, mother, father-in-law, stepfather, mother-in-law, stepmother of the worker or of his/her spouse or cohabiting partner

3 days to be chosen by the worker during the period starting with the day of death and ending on the day of the funeral (2)

Death of the worker's foster father or foster mother in the context of long-term foster care at the time of death

3 days to be chosen by the worker during the period starting with the day of death and ending on the day of the funeral (2)

Death of a brother, sister, brother-in-law, sister-in-law, grandfather, grandmother, grandchild, great-grandfather, great-grandmother, great-grandchild, son-in-law, daughter-in-law of the worker or of his/her spouse or cohabiting partner living with the worker

2 days to be chosen by the worker during the period starting with the day of death and ending on the day of the funeral (2)

Death of a brother, sister, brother-in-law, sister-in-law, grandfather, grandmother, grandchild, great-grandfather, great-grandmother, great-grandchild, son-in-law, daughter-in-law of the worker or of his/her spouse or cohabiting partner not living with the worker

1 day to be taken by the worker on the day of the funeral (3)

Death of a foster child of the worker or of his/her spouse or cohabiting partner in the context of short-term foster care at the time of death

1 day to be taken by the worker on the day of the funeral (3)

(1) At the worker's request and with the employer's agreement, the two periods in which these days must be taken can be deviated from.

(2) At the worker's request and with the employer's agreement, the period in which these days must be taken can be deviated from.

(3) This day may be taken at another time at the worker's request and with the employer's agreement.

The bill also specifies what is meant by:

  • long-term foster care: foster care in which it is clear from the start that the child will stay with the same foster family and the same foster parent(s) for at least 6 months and in which the child is registered as a member of the family in the population register or in the register of foreigners of the municipality of residence of the family or foster parent(s);
  • short-term foster care: all forms of foster care that do not meet the conditions for long-term foster care;
  • foster child: a child for whom the worker or his/her spouse or cohabiting partner, in the context of foster care, has been designated by the court, by a foster care agency recognized by the competent community, or by the competent community youth protection services;
  • foster father and foster mother: the foster parent, in the context of foster care, designated by the court, by a foster care agency recognized by the competent community, or by the competent community youth protection services.

Date of entry into force

These new provisions will enter into force ten days after their publication in the Belgian Official Gazette. We will keep you updated.

Source: Bill to extend bereavement leave in the event of the death of a partner or child and to make the taking of bereavement leave more flexible.

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