New draft bill to protect employees undergoing fertility treatment

The Social Affairs Committee of the Belgian Parliament approved a draft bill on 5 February 2024 to grant better protection to employees undergoing fertility treatment. 

If the draft bill is passed, employers must be aware of the specific protection that will apply to such employees.

I. Background

According to the World Health Organization (WHO), infertility is a disease of the male or female reproductive system defined by the failure to achieve a pregnancy after 12 months or more of regular unprotected sexual intercourse.

Recent estimates suggest that infertility affects millions of people worldwide.

Depending on several factors (e.g., the cause of the infertility, its duration, the individual’s age, etc.), fertility treatments may include medicines, surgical procedures and/or assisted conception (e.g., in vitro fertilization). As a result, such treatment may involve significant financial, physical, emotional and time commitments.

With this draft bill, the Belgian legislator aims to ensure better access to fertility treatment by addressing some of the potential negative consequences that employees may face at work in connection because of their treatment.

II. Current legislation

Under current legislation, pregnant employees are protected against dismissal from the date their employer becomes aware of their pregnancy, up to one month after the end of their post-natal maternity leave.

This protection does not apply to employees undergoing fertility treatment or having recourse to medically assisted reproduction treatments.

Indeed, in relation to in vitro fertilisation, the Court of Justice of the European Union (CJEU) has held that the protection does not apply as long as the in vitro fertilised ova have not been transferred into the uterus (CJUE, 26 February 2008, C-506/06 (Mayr), §42).

However, this does not mean that employees are left unprotected against negative consequences on their employment conditions or a termination of their employment contract for reasons that are related to the fertility treatments or medically assisted reproduction procedures that they are undergoing.

In such event, employees could possibly rely on the protection against discrimination on grounds of sex (or an equivalent protected criteria) granted by the Belgian Gender Act (with compensation equal to 3- or 6-months’ remuneration).

Furthermore, a dismissal decided on these grounds could be considered as manifestly unreasonable (with compensation equal to between 3- and 17-weeks’ remuneration)

The draft bill aims to provide even better protection against dismissal.

Employees will be protected against dismissal for a (renewable) duration of 2 months from the date their employer is informed of the fertility treatment by means of a medical certificate.

If the treatment lasts longer than 2 months, the employee must submit a new medical certificate to start another 2-month protection period (there is no limit to the number of protection periods).

The employer will not be allowed to terminate the employee's employment contract for reasons that are related to the fertility treatment.

Terminations of employment will however still be allowed on other grounds, but the employer will have the burden of proving that these are unrelated to the fertility treatment.

In case of violation of this protection against dismissal, the employer will be liable to pay compensation equal to 6 months’ remuneration (in addition to any notice period or indemnity in lieu of notice).

• Illustration

  - Emily undergoes a fertility treatment of 3 months and submits a medical certificate to her employer at the start of each month;

  - she will be protected against dismissal for a total of 4 months: her third certificate will cover the last month of treatment and one additional month;

  - after the 4th month, the specific protection against dismissal will no longer apply, with any termination of her employment contract being subject again to the ordinary rules on wrongful termination and discrimination (outlined above).

It should be noted that the concept of “fertility treatment” has not been defined in the draft bill. However, the legislator considers that it must be interpreted in a broad sense, meaning including any medical procedure used primarily to address infertility.

As it is not clear whether fertile employees having recourse to medically assisted reproduction procedures would also fall under the scope of the draft bill (think of a fertile single woman or female couple who turn(s) to assisted procreation), an amendment to the draft bill has been submitted to ensure its applicability to such employees.

In addition, the draft bill provides for amendments to the Gender Act to avoid some of the potential negative consequences that employees may face in connection with their absences relating to the fertility treatment:

(i)           the employer will be obliged to occupy the employee in the same or in an equivalent position upon his/her return to work following the fertility treatment;

(ii)           the employee will have the right to benefit from any improvement in working conditions to which he/she would have been entitled during his/her absence in connection with the fertility treatment (e.g., employers may be required to provide parallel remedial training courses equivalent to courses occurring during the absence);

(iii)           the employee will be entitled to benefit from all rights acquired (or in the process of being acquired) at the start of his/her absence in connection with the fertility treatment (e.g., if the working time regime is reduced during the absence, the employee will be entitled to his/her initial regime at the end of the absence).

Originally the draft bill provided that the employer is held to pay the employee’s full salary during his/her absence for fertility treatment (so-called paid leave).

However, in the absence of consensus, this provision was dropped in the latest version of the bill, resulting in employees not being entitled to receive their salary during absences for fertility treatment should the draft bill be passed.

In practice, it will therefore be advisable to enter into contractual arrangements with the concerned employee (e.g., to agree on paid or unpaid leave during the treatment, to adapt the employee’s working time schedule, etc.).

VI. Take-away points 

If the draft bill, as amended, is passed:

(i)           employees undergoing fertility and/or medically assisted reproduction treatments will benefit from a specific protection against dismissal; and

(ii)           some rights will be guaranteed upon their return to work following such treatments.

The draft bill still must be discussed and voted in a plenary session of the Parliament. Once voted, the law will, in principle, enter into force 10 days after it is published in the Belgian Official Gazette.

We will keep you informed once the text has been published.