As of 1 January 2024, Belgian leave legislation will undergo two major changes to comply with European Union law and the case law of the Court of Justice of the European Union (CJEU).
To fully understand the legislative changes, it should be recalled that:
employees are entitled to paid annual leave during a calendar year (the holiday year) in proportion to the months of employment during the preceding calendar year (the reference year);
employees are entitled to 20 statutory leave days per year in a 5 working days per week regime ; and
if an employee is unfit for work due to illness or injury, the performance of the employment agreement is suspended by law.
1. Sick leave during annual leave
(i) Current regime until 31 December 2023
Currently and until 31 December 2023, employees who become unfit for work during a period of annual leave are not entitled to recuperate the leave days that coincided with the days of sickness. These days are “lost”.
Illustration:
- Emily scheduled her annual leave from 4 September 2023 to 15 September 2023;
- she falls ill on 11 September until her return to work;
- the 5 days of illness will be considered as annual leave and Emily will not be entitled to take these days at a later date.
This Belgian legislation does not comply with the Directive 2003/88/EC and the case law of the CJEU, according to which “a worker who is on sick leave during a period of previously scheduled annual leave has the right, at his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave” (case C‑78/11).
(ii) New regime as of January 2024
As of 1 January 2024, employees who become unfit to work during a period of annual leave will be entitled to take the “lost” leave days at a later date, if certain conditions are met.
Employers must adapt their work rules by the end of this year to specify said conditions.
Conditions:
The normal rules in case of sick leave apply:
1° Information of the employer: the employee must immediately (as soon as possible) inform his/her employer by all possible means of his/her sickness.
2° Medical examination: the employer is entitled to instruct the employee to attend a medical examination by a doctor chosen by the employer.
Moreover, the new legislation imposes two additional obligations on the employee:
3° Address of residence: the employee must immediately inform his/her employer of the address of his/her place of residence if he/she is not staying at his/her domicile (e.g. if the employee is on vacation away from home).
4° Mandatory medical certificate: the employee must always provide his/her employer with a medical certificate (as of the first day of sickness). This certificate must at least mention that the employee is unfit for work, the probable duration of the sickness and whether the employee is allowed to move to another location for medical examination.
Illustration:
-Emily scheduled her annual leave from 4 September 2024 to 15 September 2024;
-she falls ill on 11 September until her return to work and immediately provides a medical certificate to her employer;
-the 5 days of illness will be considered as sick leave and Emily will be entitled to take these days of annual leave at a later date.
Note that the employee has the possibility to take the “lost” leave days immediately after his/her sickness. The employee must notify his/her employer of this request at the latest at the time of submission of the medical certificate. The employer is then free to accept or refuse this request.
Employers must include the new formalities to be complied with in the work rules. The amendment of the work rules can however be carried out without having to follow the normal procedure for amending the work rules. We can assist your company in this process and with the drafting of the formalities to be complied with by the employees (for instance, we recommend to include an obligation for the employee to provide a medical certificate or a translation thereof in a language that the employer understands).
Other types of leave during annual leave
As of 1 January 2024, other types of leave occurring during annual leave will also require the transfer of the “lost” annual leave days to a later date.
These leaves have been listed exhaustively by a Royal Decree of 8 February 2023 and include the suspension of the employment agreement due to an industrial accident, an occupational disease, maternity leave, maternity leave converted into paternity leave, prophylactic leave, birth leave, adoption leave and foster care leave.
2. 24 month's holiday carry over
(i) Current regime until 31 December 2023
Currently and until 31 December 2023, employees are required to take their accrued statutory annual leave days during the holiday year, i.e. all leave days accrued in year x must be taken by 31 December of year x+1.
In theory, no carry over is permitted, even if the employer and the employee agree.
If it is impossible for a specific reason (such as long-term illness) to take up all leave days, the employer will be required to pay these out at the end of the holiday year.
(ii) New regime as of 1 January 2024
As of 1 January 2024, employees will be entitled to defer their accrued annual leave days until 24 months after the end of the holiday year if they are prevented from taking their leave days as a result of sick leave or other types of leave listed in the aforementioned Royal Decree of 7 February 2023.
Important to note is that the obligation to take all the statutory leave days during the holiday year will still apply. It is only if the employee is unable to take up all his/her annual leave days for a specific reason (as set out in the exhaustive list) that the leave days must be carried over.
Furthermore, employees (both white- and blue-collar) will still receive their holiday pay for the transferred leave days no later than 31 December of the holiday year.
Illustration:
-Emily scheduled her annual leave from 16 December 2024 to 31 December 2024;
-she falls ill on 25 December until her return to work and immediately provides a medical certificate to her employer;
-the 5 days of illness will be considered as sick leave and Emily will be entitled to take these days at a later date until 31 -December 2026;
-Emily will however receive her holiday pay relating to these transferred days on 31 December 2024.
3. Take-away points
(i) Nothing changes for the holiday year 2023.
(ii) As of holiday year 2024, certain types of leave (such as sick leave) that occur during annual leave will allow the employee to take the “lost” leave days at a later date.
(iii) As of holiday year 2024, if an employee is unable to take up all his/her accrued annual leave days before 31 December due to sickness (or other types of leave), the untaken annual leave days must be carried over up to 24 months after the end of the holiday year.
(iv) Employees will potentially de facto have more than 4 weeks of annual leave per year from 2025 onwards.
(v) By 1 January 2024, employers must include in the work rules the formalities to be complied with by the employees in the event of sickness during annual leave.
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