What happens if an employee becomes sick on vacation ? You can imagine that they will be worried they might lose those rest days. New rules regarding the sickness on vacation will be introduced on this matter in 2024.
What is the current rule?
If the employee is already sick before the vacation starts, he will be entitled to a guaranteed salary for the period of the medical certificate. However, according to current Belgian law, if the employee becomes sick during the holidays he will not receive guaranteed salary and lose his vacation days.
What the courts say?
This rule is actually against a judgment of the European Court of Justice of 2012. According to the European Court of Justice, the employee who is sick on vacation need to focus on healing, whereas the objective of holidays is rest and relaxation. Hence why the Court demands the transferability of untaken holidays due to illness. Moreover, the Court prohibits a substitute payment in the form of a holiday allowance: the employee should get those days back and take them later.
There is also a European directive which states that employees are entitled to a minimum of 4 weeks’ paid holiday, if they have worked full time the previous year.
Because of this, the European Commission has already asked Belgium several times to adapt the social legislation to the European rules, but this was not done until now.
Proceedings: the road to the new rules
The social partners in the National Labour Council (NLC) reached an agreement on this matter on 21 December 2021. The relevant Royal Decree appeared on 16 March and provides the following changes in Belgian social legislation:
- Taking up vacation days when an employee is sick on vacation:
In case of suspension of the employment contract due to illness during the holidays, the days of suspension are not charged to the annual holidays. The employee can ask to transfer these days and take them up at another time. The employee will need to notify the employer immediately when sick and provide a medical certificate.
- Postponing vacation days when an employee is sick on vacation:
Postponed holidays due to, among others, a labour accident, an occupational disease, illness and accidents in private life, maternity leave or paternity leave may be taken up to 24 months following the holiday year in which the employee was unable to take his holidays.
- This decree will take effect from 1 January 2023 but will only apply for the first time to holiday year 2024, holiday service year 2023. The new rules will enter into force in 2024.