Coronavirus: postponement of planned days of leave?

With the Easter holidays approaching, many of your employees have planned days of leave. Some of them want to postpone them because of the quarantine measures.

As an employer, you may want your employees to take advantage of the drop in your business activity to take days off. Or because your company is running at full speed, you might prefer that some of your employees postpone their planned days of leave.

What principles apply? What is allowed and what is not?

Determining when leave is taken: a reminder of some principles

The following general principles apply to the determination of when leave is taken, unless a special decision is taken by the joint committee: the employer may either consider closing down his company and granting collective leave to his staff, or grant leave on the basis of individual agreements.

Collective, annual company closure period

The setting of collective closure dates must result from a decision of the works council. In the absence of a works council or a decision of the works council, the periods of collective closure will be set in an agreement between, on the one hand, the employer and, on the other hand, the trade union delegation or, in the absence hereof, the employees.

The agreement may also, where appropriate, relate to the use of the balance of days of leave not taken during the closure.

The collective closure dates of the company must imperatively be mentioned in the employment regulations. As soon as an agreement has been reached on the setting of the dates of collective leave, the employer must post it, give a copy to the employees and provide a copy to the directorate of the social legislation inspectorate that is competent for the company.

The annual leave regulations do not provide for a deadline for setting collective leave within the company. However, as your employees could take days of leave as from 1 January 2020 (based on their time worked in 2019), you had to complete all the required formalities by 31 December 2019 at the latest.

Leave taken on the basis of individual agreements

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

The employee can therefore never unilaterally impose the date of his leave. Conversely, the employer may not oblige his employees to take leave on dates that suit him.

What about the legal principles during the quarantine period?

In the event of a collective closure decided at sector level, leave should be maintained (unless the joint committee decides otherwise).

If the collective closure has been decided at company level, we think it would be advisable to maintain it. Indeed, the formalities to be completed (see above) to determine the postponement of the collective closure seem to us difficult to achieve in the short term.

In the event that the days of leave have been determined in an individual agreement, different situations are possible.

Your employee wants to postpone planned days of leave

As with the determination of when leave is taken, the postponement of planned days of leave is determined in an individual agreement between the employer and each employee.

This means that your employee could not force you to postpone his days of leave.

You want your employee to postpone his planned days of leave

As with the determination of when leave is taken, the postponement of planned days of leave is determined in an individual agreement between the employer and each employee.

Therefore, you could not force your employee to postpone his days of leave.

You want your employee to take days of leave

When leave is taken is determined in an individual agreement between the employer and each employee.

Therefore, you could not impose the dates on which the employee should take leave.

Exceptional circumstances, exceptional recommendations

Given the exceptional situation we are currently experiencing, as an employer you could make certain recommendations regarding the taking of leave during the quarantine period, in order to apply the legal principles flexibly.

In our opinion, it is essential to give your employees an explanation of the circumstances and reasons that oblige you to communicate such recommendations (declining activity or, on the contrary, a higher workload, the need to have all staff present when activities are resumed normally, etc.).

In addition, these recommendations should ideally take into account the following elements:

• they must apply to all members of staff or to all employees of the same department,
• as far as possible, both the interests of your company and those of your employees must be taken into account, the aim being to strike the right balance by calling on everyone to show solidarity.

Bearing those principles in mind and depending on the situation you find yourself in, you could, for example, do the following:

• accept the postponement of days of leave, but only up to a certain number of days,
• request the postponement, not of all planned days of leave, but only of a certain number,
• encourage the taking of a certain number of days of leave during the quarantine period or, more specifically, during the Easter holidays,
• etc.

Except for sector specificities, all these principles can, of course, also be applied to other types of leave, such as seniority leave, extra-legal leave, etc..

Important note! According to the National Employment Office (ONEm/RVA), the employer should maintain the planned days of leave for employees who are temporarily unemployed due to force majeure.