New in 2019: adoption leave has been adapted!

The Act of 21 December 2018 on various social provisions reformulates and clarifies the changes recently made to adoption leave.

Remember: the Act of 6 September 2018 amending the regulations to strengthen adoption leave and the introduction of foster care leave has amended the rules on adoption leave with regard to the duration and scenario of international adoption (see our Infoflash of 8 October 2018).

Unfortunately, this Act was a source of confusion and legal uncertainty, and it therefore urgently required clarification. This has been done in the meantime.

The rules described below only concern the points that can be amended by the Act of 6 September 2018 and the Act of 21 December 2018, namely the duration and submission of the application for adoption leave and the scenario of international adoption. They apply to adoption leave for which the application is submitted to the employer as from 1 January 2019 and provided that the leave commences as from 1 January 2019 at the earliest.

REMINDER: RULES APPLICABLE UNTIL 31 DECEMBER 2018

Duration

The employee who adopted a child was entitled to adoption leave for an uninterrupted period of:

• maximum 6 weeks if the child was less than 3 years old at the start of the leave;
• maximum 4 weeks if the child was 3 years or older at the start of the leave.

The maximum duration of the adoption leave was double (8 or 12 weeks) if the minor child suffered from a physical or mental incapacity of at least 66% or, if the child scored at least 4 points in the first pillar of the medical-social scale as a consequence of the disorder within the meaning of the regulations concerning child benefits.

In the event of simultaneous care for more than one child in the employee's family, the entitlement to adoption leave was granted only once.

The exercise of the entitlement to adoption leave ended when the child reached the age of 8 years during the time the leave is taken.

Submitting the application

An employee who wished to make use of the right to adoption leave had to inform his employer in writing at least one month before taking the leave, either by registered letter or by handing over a written document, the duplicate of which was signed for receipt by the employer.

And what in the event of international adoption?

Adoption leave had to start within 2 months following the registration of the child as a member of the family of the employee in the population register or in the register of foreigners of the municipality of residence.

Therefore, in the event of an international adoption, the adoption leave could not be taken to complete administrative formalities prior to adoption or to accompany the child when it leaves his or her country of origin.

WHAT IS THE SITUATION SINCE 1 JANUARY 2019?

Duration

An employee who adopts a minor child, is entitled to adoption leave for an uninterrupted period of up to 6 weeks, regardless of the age of the minor child.

The maximum duration of the adoptive leave shall be double (12 weeks) if the child suffers from a physical or mental incapacity of at least 66% or, if the child scores at least 4 points in the first pillar of the medical-social scale or at least 9 points in all 3 pillars as a consequence of the disorder within the meaning of the regulations concerning child benefits.

The maximum duration of the adoptive leave shall also be extended by two weeks per adoptive parent in the event of the simultaneous adoption of several minor children.

Furthermore, a gradual extension of the duration is foreseen.

Adoption care leave of 6 weeks per parent is extended for the foster parent or for both foster parents together in the following way:

• by 1 week from 01 January 2019;
• by 2 weeks from 01 January 2021;
• by 3 weeks from 01 January 2023;
• by 4 weeks from 01 January 2025;
• by 5 weeks from 01 January 2027.

A Royal Decree can set an earlier date of entry into force for the entitlement to the 2, 3, 4 and 5 additional weeks.

NB! The employee can only benefit from the gradual extension of the adoption leave under the double condition that his leave application is submitted at the earliest from the entry into force of the relevant extension period and that the leave starts at the earliest from the same date of entry into force.

If there are two adoptive parents, they divide the additional weeks among themselves. A Royal Decree can establish the means of proof with which the persons who adopt together can demonstrate how the additional weeks are distributed among them.

Submitting the application

An employee who wishes to make use of the right to adoption leave has to inform his employer in writing at least one month before taking the leave, either by registered letter or by handing over a written document, the duplicate of which is signed for receipt by the employer.

Nothing changes, therefore, except that the one-month period can now be shortened by mutual agreement between the employer and the employee...

And what in the event of international adoption?

As before, the adoption leave must start within 2 months following the registration of the child as a member of the family of the employee in the population register or in the register of foreigners of the municipality of residence.

However, in the case of an international adoption, the adoption leave can already start from the day after the agreement of the decision by the competent central authority of the community to entrust the child to the adopter (in accordance with Article 361-3, 5° or Article 361-5, 4° of the Civil Code), in order to pick up the child in the State of origin with a view to his actual accommodation in the family.

A Royal Decree may determine in which cases and under which conditions and further rules an exception may be made to the continuous nature of adoption leave.

Source: Act containing various social provisions, Belgian Official Gazette of 17 January 2019.