An employer may encounter an employee who is absent from work for diagnosing or undergoing treatment for infertility or who undergoes medically assisted reproduction (MAR).
Since 28 April 2024, the employee (male or female) undergoing any of these treatments benefits from specific safeguards that comprises two aspects: a specific protection against dismissal and a protection of their rights when they are absent from work for this reason.
Protection against dismissal
The employee undergoing treatment for infertility or MAR is now protected against dismissal.
To benefit from protection against dismissal, the employee must notify the employer of their absence. To do so, they must provide the employer with a medical certificate attesting to the necessity of attending medical examinations and treatments related to infertility or MAR.
Any dismissal can only be made for reasons unrelated to the employee’s absence related to treatment for infertility or MAR. Furthermore, the burden of proof lies with the employer.
What is the duration of the protection?
The protection for the employee extends for a period that begins from the moment the employer is informed by a medical certificate and ends two months after this notification.
Example: Certificate 1: Notification on 7 May 2024 à protection until 6 July 2024 included.
What are the penalties for wrongful dismissal?
In case of wrongful dismissal (i.e., without sufficient cause or reasons related to the absence of the employee due to fertility treatment or MAR), the employer may be liable for a lump sum indemnity equal to six months of gross remuneration, in addition to any severance pay that would have been paid for termination of the employment contract. This indemnity can be combined with other protection indemnities, such as the indemnity for violation of the prohibition of discrimination.
Protection against discrimination
In addition to introducing this specific protection against dismissal, the legislator amends the Act of 10 May 2007, on combating discrimination between women and men by establishing this absence as an additional protected criterion.
As a result, treatment for infertility or MAR, and the absences related to them, cannot lead to detrimental consequences for the employee.
Thus, at the end of treatment for infertility or MAR, the employee has the right to:
- Return to the same position, and if impossible, be assigned an equivalent or comparable position;
- Any improvement in working conditions to which they would have been entitled during their absence;
- All acquired or in-progress rights during their absence.
In case of violation of the prohibition of discrimination, the employer may be liable to pay a lump sum indemnity equal to 6 months of gross remuneration.
What are the rules for the absences of the employee undergoing treatment?
The Act does not provide for a paid absence for employees who are absent during treatment for infertility or a MAR. Employers and employees have the flexibility to negotiate arrangements for these absences, such as:
- Paid leave;
- Justified absence without continued remuneration;
- Temporary adjustment of the work schedule.
For more information on this topic or other payroll related matters, do not hesitate to reach out to Pro-Pay via the contact form.
