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A draft law adopted by the House on 13 July aims to allow employees who fall ill during their holidays to benefit from guaranteed pay and to carry over their days of leave to the end of their incapacity or at a later date.
This draft law is part of the adaptation of the regulations on annual holidays to comply with a European directive of 4 November 2003.
An employee who becomes incapable for work during an annual holiday period will be obliged to inform his employer of his place of residence if he is not at his usual address.
Within the period currently stipulated by law, i.e. within 2 working days of the beginning of the incapacity, the employee must provide his employer with a medical certificate.
In the event of force majeure, the certificate must be provided within a reasonable period of time.
The certificate must mention the incapacity for work, its probable duration and whether the employee is able to travel to another location for a possible medical check-up.
This obligation to provide a medical certificate will exist even if it is not currently provided for in the employment regulations and even if the employer does not expressly request it.
The draft law therefore provides for a derogation from the employee's general obligations with regard to incapacity for work.
A Royal Decree could also provide for a specific model medical certificate in this situation of incapacity for work occurring during the annual holidays.
From 2024, annual holidays covered by a medical certificate will be considered as days of incapacity for work.
The employee will therefore in principle be entitled to the guaranteed pay to be paid by his employer. Employees must submit their medical certificate on time to avoid the employer refusing to pay the guaranteed pay for late submission of the medical certificate.
Employees who wish to carry over their holidays immediately following their incapacity for work must inform their employer of this request at the latest when they submit their medical certificate to their employer.
Update (8 august 2023) ! The employee has the option of carrying over his days until 31 December of the holiday year in which the incapacity for work occurred (and not as previously announced “during the 24 months following the holiday year”).
For more information on the new regulation on annual holidays and the carrying over of annual holidays in the event of incapacity for work or other suspensions, refer to the Infoflash of 20 March 2023.
The employment regulations will have to include a specific reference to the formalities to be complied with by the employee in the event of incapacity for work during an annual holiday period.
The law is due to come into force on 1 January 2024.
We will keep you informed of the date of publication in the Belgian Official Gazette.
Source: Draft law amending the law of 3 July 1978 relating to employment contracts and the law of 8 April 1965 instituting employment regulations with regard to the concurrence of annual holidays and incapacity for work, doc 55/3370, www.lachambre.be
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