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Since 1 January 2024, new rules apply when certain suspensions such as sickness occur during your employees' period of annual leave. Employees no longer 'lose' these leave days but can now reschedule them later. This adjustment complies with European regulations stipulating that every employee is entitled to at least four weeks' paid leave every year. Below, we briefly list what employers need to know about this.
From this year onwards, there are more suspensions of the employment contract that may not be charged to statutory leave days when they occur during an employee's annual leave (including collective closure). The originally scheduled leave days will then be added back to the counter with the balance of leave days yet to be taken, and the employee has to reschedule them later - in principle within the same calendar year. More specifically, this concerns suspensions due to:
an accident at work or occupational illness;
an accident or illness under common law;
maternity leave;
converted maternity leave (for the father or co-mother);
participation in courses or study days devoted to social advancement;
prophylactic leave (cessation of work pursuant to a prophylactic measure when the employee has come into contact with someone affected by a particular infectious disease);
birth leave;
adoption leave;
foster care leave;
foster parent leave.
Example: an employee (working a 5-day week) has 3 weeks' annual leave planned from 8 July to 26 July 2024. However, he falls ill from Monday 15 July to Friday 19 July and provides a medical certificate to substantiate this. These days will be converted into days of incapacity for work. The employee can reschedule these 5 leave days at a later date, no later than 31 December 2024.
Below, we elaborate on the situation of illness or accident occurring during annual leave.
If the employee becomes incapacitated due to illness or accident during his statutory leave, he must:
Immediately notify his employer of the incapacity for work (general rule);
Immediately inform his employer of his place of residence, if he is not at his home address (e.g. abroad);
Always provide a medical certificate, even if not required by general regulations, within the normal time limit applicable in the company or by law (2 working days). In the event of force majeure, the certificate must be provided within a reasonable period of time. The medical certificate must mandatorily include the following information:
a finding of incapacity for work
the probable duration of the incapacity for work
whether the employee may go to other locations for examination purposes.
An optional specific model of medical certificate has been established by royal decree and is available in 4 languages. However, your employee is not obliged to use this model.
The normal examination procedures in case of incapacity for work apply. So you can send an examining medical officer to check your employee's incapacity for work.
The formalities to be observed by the employee in case of incapacity for work due to illness or accident during a period of annual leave must be included in the employment regulations.
It is important to note that such incapacity for work does not automatically extend the current holiday period. If the employee wishes to extend his current holiday period, he must explicitly communicate this at the latest when producing the medical certificate. However, your agreement as an employer is still required.
The holidays initially scheduled are considered as days of incapacity for work, entitling to the normal payment of the guaranteed wage at the employer's expense.
Important note: failure to comply with the above formalities, e.g. if the medical certificate is submitted too late, is subject to the usual sanctions = non-payment of the guaranteed wage for the days prior to the certificate's production.
In a following Infoflash, we will elaborate on the situation of carrying over statutory leave days for 24 months following the holiday year if an employee has been unable to take all accrued days of annual leave by the end of December due to certain suspensions of the employment contract.
If you have any questions, please contact our Legal Partners at legalpartners@partena.be.
Sources: art. 31/2 of the Employment Contracts Act of 3 July 1978, RD of 30 March 1967 determining the general terms and conditions for the implementation of the laws concerning employees' annual leave, FPS Employment, Labour and Social Dialogue
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