At a glance
- There’s recently been some debate about whether employees need to submit a medical certificate from a doctor for a short period of sick leave.
- Below, we discuss the current rules for medical certificates in Belgium.
Back in autumn 2021, the Belgian government announced plans to (partially) abolish the need for a medical certificate for short-term sick leave. The professional organisations of doctors called for a similar change, to avoid the workload resulting from patients consulting a doctor mainly to get a certificate.
The legislative change was introduced through the Act of 30 October 2022 with various provisions in relation to disability, which made the topic rather complex.
If an employee can’t work because of illness or an accident, they should first inform their employer as soon as possible. The law does not regulate how this should be done. An email is preferable over a telephone call for evidence reasons.
A doctor’s certificate is only needed when the obligation to provide one is stipulated in a collective bargaining agreement or in the work regulations, or if the employer asks for one. The legislation does not stipulate how the employer should send the request.
When a medical certificate is needed, the employee should send it to the employer within two working days from the start of the period of absence. A collective bargaining agreement or the work regulations can stipulate a difference deadline. The two working day rule relates to the moment the certificate is sent, not the moment the employer should receive it.
What does the law state now?
The law now states that no medical certificate is needed for the first three periods of sick leave per calendar year that last only one working day. So nothing’s changed if the sick leave lasts two working days or longer. In that case, a medical certificate is necessary if required by a collective bargaining agreement or the work regulations, or if the employer asks for one.
Organisations with less than 50 workers can, in a collective bargaining agreement or their work regulations, deviate from this rule and require a medical certificate for these first three cases of sick leave lasting only one day. The 1978 Act on Employment Contracts uses the term “organisations,” so there are good arguments that the 50 worker threshold should be assessed at the level of the technical operating unit, and not for each company separately.
The Federal Public Service of Employment, Labour and Social Dialogue takes the view that deviating from the general rule that a medical certificate is no longer necessary for the first three cases of sick leave lasting only one day, requires an active deviation by either signing a collective bargaining agreement or by amending the work regulations. A certificate would also be needed if the current work regulations stipulate one is needed in all cases of sick leave because the work regulations pre-date the Act of 30 October 2022. These employers should – according to the Federal Public Service of Employment – follow the procedure for amending the work regulations (requiring consent of the works council or a staff consultation process), even if the text of the new and the current work regulations would be exactly the same.
The 1978 Act on Employment Contracts does not stipulate a prohibition on medical certificates with retroactive effect. These will probably become more frequent, as an employee could, on the first day of sick leave, hope to have recovered so they can go back to work the next day (so they wouldn’t need a certificate), and only consult a doctor on the second day, when it becomes clear a medical certificate is required.
Nothing has changed in the rules concerning the right of the employer to send a controlling doctor. Also if the sick leave is scheduled to last only one day, and the worker does not need to provide a medical certificate, the employer has the right to send a controlling doctor.
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