At a glance
- A draft Act introducing new rules on sick leave taken during holiday leave was approved on 13 July 2023. The Act is to come into force on 1 January 2024.
Belgian law v EU law
Under the European Council directive 93/104/EC of 23 November 1993 'concerning certain aspects of the organisation of working time' and the Belgian Act of 28 June 1971 'concerning the annual holiday leave of workers', full-time employees with a complete reference period are entitled to four weeks statutory holiday leave per year.
The Royal Decree of 30 March 1967 'determining the general implementation modalities of the Acts concerning annual holiday leave of workers' sets out that if an employee falls ill when a period of statutory holiday leave is due to start, the holiday leave is cancelled and should be taken up at another point in time.
However, this is only if the illness or accident takes place before the start of the holiday leave. Belgian law did not cover the issue of when the employee falls ill or has an accident during the holiday leave. Therefore, this period was still deemed as holiday leave.
In comparison to the lack provisions on the above issue, in its judgement of 21 June 2012, the European Court of Justice held that the Working Time Directive should be construed as prohibiting a national legislation that does not entitle an employee to take holiday leave at a later stage if the employee become unfit for work during a period of annual leave.
Government response
Taking into consideration the contradiction between Belgian and European law, the Belgian government on 25 May 2023 submitted a draft Act to Parliament to bring Belgian law in line with the requirements of EU law. The draft Act was unanimously approved on 13 July 2023.
The new legislation sets out that if an employee become ill or has an accident during a period of holiday leave, they should immediately inform their employer of the illness or accident and the place where they are staying. The employee should also immediately send a medical certificate to the employer which mentions how long the sick leave it to last and whether the employee is able to travel. In the case of a force majeure (e.g. if an employee is hospitalised), the employee should provide the employer with this medical certificate within a reasonable time.
Where an employee has provided a certificate, the days planned as holiday leave are converted into sick leave. Therefore, the holiday leave can be taken up at a later date. Normal rules apply when determining whether an employee is entitled to sick pay.
Work regulations must determine the guidelines and procedures employees are to follow in the case of an illness during a period of statutory holiday leave. These may include:
- Setting out who should be informed, ie the direct manager, the HR department; and
- Who the medical certificate is to be sent to and how (e.g. via email).
The employer may insert these provisions in the work regulations without having to follow the normal procedure for amending the work regulations, so the approval of a works council is not required.
The new Act does not stipulate any provisions in relation to the right by the employer to have recourse to a controlling doctor. The rule under the 1978 Act on Employment Contracts stating that an employee is not entitled to refuse a medical examination by a controlling doctor appointed by the employer, is also applicable in the case of illness during a period initially planned as holiday leave. However, it goes without saying that it will be difficult for an employer to find a controlling doctor who can perform this medical examination if the employee is abroad.
More to explore
