Infertility treatment or medically assisted procreation: new protection against dismissal!

A law providing new protection against dismissal has just been published in the Belgian Official Gazette.

From 28 April 2024, you may not dismiss your employee if they inform you that they are undergoing infertility treatment or medically assisted procreation.

What are the implications? Let us explain everything.

What is it all about?

If an employee informs you, by means of a medical certificate, that they are undergoing infertility treatment or medically assisted procreation, you may not unilaterally terminate their employment contract:

• for reasons relating to their absences in order to carry out this infertility treatment or medically assisted procreation;
• and this applies for a protection period of two months from the day on which you were informed by the employee.

‘Medically assisted procreation’ is defined in Article 2 of the Belgian Act of 6 July 2007 on medically assisted procreation and the use of supernumerary embryos and gametes.

N.B. You may still dismiss your employee during this period of protection, provided that the dismissal is for a valid reason that is not due to the employee's absence from work in connection with infertility treatment or medically assisted reproduction.

What are the consequences?

If you terminate your employee’s contract during the period of protection, it will be up to you, the employer, to provide proof that the reason is unrelated to their absence for infertility treatment or medically assisted procreation.

At the employee’s request, you must provide the reason in writing.

If no reason is given, or if the reason is not unrelated to the employee’s absence for infertility treatment or medically assisted procreation, you will have to pay them a lump sum equal to their gross pay for six months, without prejudice to the compensation due in the event of termination of the employment contract.

When they return to work?

Your employee has the right to resume their role when they return to work after an absence for infertility treatment or medically assisted procreation.

If it is not possible to give them the same role, you will have to assign them an equivalent or similar role, which is in line with their employment contract.

Your employee has the right to benefit from any improvement in working conditions to which they would have been entitled during their absence. They also benefit from all rights acquired or in the process of being acquired during their absence.

If these rights are not respected, the employee can claim damages and interest for discrimination (in principle, an amount equal to six months' gross pay).

Source: Act of 24 March 2024 amending the Belgian Labour Act of 16 March 1971 and the Act of 10 May 2007 designed to combat gender discrimination with a view to instituting protection for employees who are absent from work for infertility treatment or medically assisted procreation, Belgian Official Gazette, 18.04.2024.