New rules on sickness during holiday leave in effect from 1 January 2024

At a glance

• Previously,  annual leave could only be rescheduled if an employee fell ill before their leave began.
• From 1 January 2024, annual leave can be rescheduled whether the individual falls ill before or during their holiday.
• The employer should be notified of any ill-health during holiday and a medical certificate provided.
• A pro-forma medical certificate form for sickness absence during holiday has been published, but its use isn’t mandatory.

According to both the Working Time Directive and the Belgian Act of 28 June 1971, full-time employees are entitled to four weeks’ holiday leave per year. European Court of Justice case law says that statutory holiday leave is an important principle of European social law which should not be made subject to conditions that mean employees do not have time to rest.

Previously, if an employee was ill when a period of statutory holiday was due to begin, the Royal Decree of 30 March 1967 stipulated that the period of leave was cancelled and could be used at a later time.  However, this only applied if the illness occurred before the start of the period of leave and not where the employee fell ill during the leave in which case the period of illness was still deemed to be holiday.

In its judgment of 21 June 2012, the European Court of Justice held that the Working Time Directive prohibits national legislation that fails to entitle an employee to take holiday at a later date if the employee becomes unfit for work during annual leave.

To address this contradiction between Belgian and European law, on 17 July 2023 the Belgian Parliament approved an Act making it possible to postpone leave if an employee falls ill during their holiday. This new Act came into force on 1 January 2024.

As for any period of sick leave, an employee should immediately inform their employer if they become ill during holiday leave. The law does not specify how this must be done, so employees should follow any rules set out in the relevant work regulations. The employee should always provide the employer with a medical certificate, even for the first three instances of sick leave per year of at least one day’s duration. Usually employees do not have to submit a medical certificate for such periods of sick leave where they fall outside a period of holiday. The medical certificate should include the employee’s details, doctor’s details, expected duration of sickness absence, and whether the employee is able to travel for a medical examination.

In normal circumstances, employees should send the medical certificate within two working days, unless the work regulations stipulate otherwise. For sick leave during a period of holiday leave, the medical certificate should be sent 'immediately,' but the Act does not provide any further detail. The Act does add that in cases of force majeure, the medical certificate should be sent within a reasonable period.

A Royal Decree of 22 December 2023 includes a medical certificate pro-forma to be used in respect of sickness absence during holiday, but its use is not mandatory. The form is in line with medical certificates typically issued by doctors in Belgium.

Doctors in Belgium will usually identify the worker using their national register number, but the form recommends that the doctor copies the number from the employee’s identity card. Also, doctors in Belgium can easily be identified by their social security number, which will not be the case for doctors outside Belgium. The form states that the doctor issuing the certificate should identify themself, but it does not say how this should be done.

If the employee notifies the employer and provides the required medical certificate, they will be entitled to sick pay for any sickness absence that falls within the usual sick pay period (for most employees this is 30 days per annum).

The new legislation does not include any specific right for an employer to request the appointed doctor to check whether the employee is genuinely unable to work. As these rights apply to periods of ill-health which occur during planned holiday leave, it will be difficult to organise a medical examination if the employee is abroad in any event.

The recently published form points out that if an employee falls ill during a period of holiday, they should reschedule the annual leave using the normal process for booking holiday. There is no rule stating that the initial period of holiday leave is automatically extended by the equivalent number of  days of sick leave.