Up until now, employees who spent their holidays bedridden with the flu were entitled to a holiday. However, from 1 January 2024, the law will change and it will be possible to take leave at a later date.
At present, an employee who has an accident or falls ill while on holiday simply loses his or her holiday days. On the other hand, if they fall ill just before and during their leave, they are entitled to take days of holiday at a later date when they were ill. He is entitled to guaranteed pay for his sick days.
What are the practical changes for holidays?
From 1 January 2024, the law will change: if an employee falls ill while on leave, his leave days will be converted to sick days, and he will be able to retrieve them later. “This change will also apply if any of the following absences coincide with holidays: accident at work, occupational illness, maternity leave, prophylactic leave (if the employee is breast-feeding and her work represents a danger to the infant), adoption leave, birth leave, foster care leave and parental foster care leave”, says the company HR services provider Acerta. The basic idea is that holidays are for relaxation and rest, not for recovering from illness or an accident.
In addition, employees who are unable to work will have the right to transfer holiday days to the following two years if it is impossible to take them in the initial year. “One shot a year is still the basic principle,” stresses Acerta. The employee will retain the right to guaranteed pay for days of incapacity for work that coincide with holidays.
Employee obligations
This change does not mean that employees will simply be able to extend their holiday period, they will have to fix new holidays, in agreement with your employer. In addition, the onus is on the worker to provide evidence of incapacity for work and this without exception, explains Wim Depondt, legal adviser at Acerta. Although since 28 November 2022, most employees are no longer required to produce a medical certificate for a one-day absence, although this rule does not apply to workers who fall ill during their holidays.
If they are abroad, employees must consult a doctor on the spot. The legal expert also points out that the doctor is required to indicate the probable duration of the incapacity for work and to specify whether or not the patient is authorised to travel, with a view to a possible medical check-up. “The Belgian employee will have to tell the foreign doctor to provide these details, because if they are missing, the employee loses the right to the guaranteed salary”, says the lawyer.
Employees are also required to indicate their place of residence. The employer has the right to send a check-up doctor to the employee if the latter is not at home. “If the employee is not at home, his absence can be considered as a refusal to be checked”, warns Wim Depondt. The employer can then deprive the employee of his guaranteed salary or impose a disciplinary sanction.
Threat from Europe
These changes are being driven by the European Union: for some time now, the Commission is threatening to initiate infringement proceedings against the Belgian State. Déjà en 2012, la Cour de justice européenne avait jugé que le travailleur qui tombait malade durant ses congés pouvait les récupérer ultérieurement. Following this decision, Labour Minister Pierre-Yves Dermagne (PS) had to work out a solution with the social partners.
One of the reasons why the Belgian government has been so slow to comply with European case law is that the issue was not considered a priority, either by the Belgian legislator or by the social partners. “They have other concerns. Only the lawyers were concerned that Belgian legislation did not comply with European law,” explains Wim Depondt.
Unsurprisingly, employers fear that the new system will lead to abuse. According to them, it would be very easy for an employee to find a doctor abroad who would issue a certificate and allow them to postpone their leave. “There will always be abuses, but in any case the social partners had no choice. Otherwise, the European Commission would launch an infringement procedure”, observes the legal expert.
According to the lawyer, some companies are already applying the system. “Working relationships are increasingly based on trust. It was thanks to the Covid pandemic that employers realised they could trust their employees. We’re even seeing more of them working,” he concludes.