Corona unemployment and holidays: beware of confusion!

Author: Catherine Legardien (Legal Expert)
Date:

Now that the summer holidays have started, holiday requests from your employees are undoubtedly flooding in.

If you intend to make use of temporary unemployment 'corona' during this period, it is important to make a clear distinction between these two types of suspension of the employment contract. In this way, you can avoid improper use of temporary unemployment 'corona' or annual leave.

Annual leave: a short reminder

In the absence of a collective agreement, the days of leave are determined in an individual agreement between you and the employee.

If you accept your employee's request for leave for a certain period, the employee will be able to take time off work and freely enjoy this time off.

These days of leave will either be covered by holiday pay that you pay (for non-manual workers) or by a holiday voucher payable by the National Office for annual leave (ONVA/RJV) (for manual workers).

Important!

If you can invoke the operational requirements of the company to refuse a holiday period, you must in any case comply with the rules of granting leave laid down in the regulations, such as among others:

  • grant all days of leave before 31 December 2020. Days of leave not taken in 2020 therefore cannot be carried over to 2021;
  • grant days of leave to employees with school-age children, preferably during school holidays;
  • unless otherwise requested by the employees concerned, a continuous period of two weeks must be granted between 1 May and 31 October (3 weeks for employees under the age of 18 on 31 December 2019). In any case, a continuous holiday period of one week must be guaranteed.

Temporary unemployment 'corona': instructions for use

You can make use of temporary unemployment 'corona' for some or all staff members in certain situations (linked to the coronavirus crisis) that the National Employment Office (ONEm/RVA) has specified (see the NEO’s FAQ on this subject ). These include among others:

  • partial or complete closure of the company or business,
  • lack of work (e.g. due to a decline in orders or production),
  • cancellation of events,
  • etc.

The employee may be made temporarily unemployed due to corona during all days of the week or only a few days per week or per month. Moreover, the employer may always recall an employee for whom a day of temporary unemployment 'corona' was planned, depending on the needs and the evolution of the situation in his company.

For the days of temporary unemployment 'corona', the employee receives a benefit from the NEO equal to 70% of his wage (limited to € 2,754.76 gross per month).

Days of temporary unemployment 'corona' are not holidays!

These principles, which make a clear distinction between the two causes of suspension of the employment contract, remind us not to confuse 'days of leave' with 'days of temporary unemployment 'corona''.

Therefore, you cannot use days of temporary unemployment 'corona' to replace days of leave or to cover a holiday period. In fact, the purpose of these two causes of suspension of the contract is quite different!
Take, for example, the case of an employee who requests two weeks' holiday in July. If you agree to grant only one week's holiday and make the employee temporarily unemployed due to corona in the 2nd week, you have clearly replaced one week's holiday by one week's temporary unemployment 'corona'. This is undoubtedly improper use of temporary unemployment 'corona'.

Moreover, the employee would not be able to go abroad during a period of temporary unemployment 'corona', as he could be recalled to work on the basis of the company's operational requirements.

A few tips

  • Avoid making your employees temporarily unemployed due to corona immediately before or after a holiday period (unless, of course, the employee's activity is at a complete standstill). In this way, you rule out any discussion about the improper use/abuse of temporary unemployment 'corona'.
     
  • As days of leave must be taken before 31 December 2020, you should regularly ensure that your employees use up their leave in accordance with the rules of granting. It could indeed be a problem that employees for whom you have made use of temporary unemployment 'corona', find themselves with a significant number of days of leave still to be taken at the end of the year!

 

  • Make sure that you properly identify the positions/employees for whom you need to make use of temporary unemployment 'corona'. If, for example, since the beginning of the crisis, it has been necessary for a given employee to make use of temporary unemployment 'corona' every other week because of his position, this may no longer be justified in July and August because days of leave are taken.

 

  • Make sure you negotiate holiday periods with your employees, by taking into account your interests but also their wishes. If your agreement is required to take leave, you cannot just impose the dates that suit you best. If, for example, an employee wants to take the first two weeks of September off, you cannot force him to take off in August because you expect your activities to resume after the summer holidays. Try to find a compromise by, for example, proposing to your employee to move his holiday a week earlier.

 

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