What’s new about falling ill during annual leave ?

While the legislation on annual leave was recently amended[1] to allow employees who fall sick during a period of holiday to convert their statutory leave days into sick days (so that the leave days are no longer "lost"), a new Act[2], published in the Belgian State Gazette on 31 July 2023, aims to frame the details of the new rules in terms of employment law. This new Act comes into force on 1 January 2024.

In concrete terms, from that date onwards, when an employee falls ill during a period of annual leave, he or she must:

• Immediately inform the employer of his/her work incapacity and of his/her place of residence if he/she is not at his home address (for example, if he/she is on holiday abroad);
• Send a medical certificate containing specific information, in any case (even if the work regulations and/or a collective labour agreement do not require it, and without the employer having to ask him/her to do so) and within the applicable time limit[3]. 

Under these conditions, the employee will be entitled to the guaranteed salary supported by the employer for the period of work incapacity and will also be entitled to maintain his/her “lost” leave days, which he/she will be able to postpone within 24 months following the end of the holiday year[4]. These days could possibly be taken immediately after the end of the period of sickness (which will constitute an extension of the holiday period), but only if the employer agrees. If the worker wishes to make use of his right to maintain his “lost leave days” at the end of the period of work incapacity, he/she must inform the employer at the latest when he/she submits the medical certificate.

The formalities to be complied with by the employee in the event of work incapacity occurring during annual leave must be inserted in the work regulations (without, however, having to follow the strict procedure for amending the work regulations). 

We remain at your disposal should you have any questions regarding the above or to assist you in amending your work regulations.
 
[1] Royal Decree of 8 February 2023 amending Articles 3, 35, 46, 60, 64, 66 and 68 and inserting an Article 67bis into the Royal Decree of 30 March 1967 determining the general terms and conditions for the implementation of the laws relating to annual holidays for salaried employees, M.B., 16 March 2023, p. 31.819.
[2] Act of 17 July 1978 modifying the Act of 3 July 1978 regarding employment contracts and the Act of 8 April 1965 establishing work regulations regarding the coincidence of annual holidays and incapacity to work.
[3] In the event of force majeure, the new rules provide that the employee must send the medical certificate within a reasonable period of time.
[4] Royal Decree of 30 March 1967 determining the general terms and conditions for the implementation of the laws relating to annual holidays, art. 61, 1°/1.