Is a medical certificate still required in the event of work incapacity of one day?

On 18 November 2022, the Act of 30 October 2022 containing various provisions relating to work incapacity was published in the Belgian Official Gazette. It will come into force on 28 November 2022. 

It inserts a.o. a new paragraph 2/1 in Article 31 of the Employment Contracts Act of 3 July 1978, that provides for:

- (i) The abolition of the obligation for workers to issue a medical certificate:

• Either when the worker’s work incapacity does not exceed one day; 
• Or for the first day of a longer period of work incapacity. In other words, this concerns the situation of a worker who is unfit to work one day and whose physical condition does not improve the day after, constraining him/her to consult his/her general physician to state his/her work incapacity. For the legislator, this aims at avoiding the worker “having to have his/her work incapacity determined retroactively” (*1).

The worker can make use of this right (he/she is not obliged to do so) only for 3 days of work incapacity maximum per calendar year. 

Of course, this exemption only applies to employers who require workers to issue a medical certificate (which has to be provided either by collective bargaining agreement or in the work regulations or, failing that, when the employer invites them to do so).

HOWEVER, this new provision does not affect the following existing rules: 

• The obligation of the worker to immediately inform the employer of his/her work incapacity;
• The possibility for the employer to let control the work incapacity as of the first day, even if this work incapacity is not stated by a medical certificate. To this end, the legislator has introduced a new obligation on the part of the worker, who must communicate the address where he/she is staying during this first day of work incapacity unless it corresponds to his/her usual residence known by the employer. However, the simple fact of communicating the place of stay is not considered as a use of the exemption from issuing a medical certificate (*2).

- (ii) A possible derogation from the exemption of a medical certificate for the first day of work incapacity for companies with less than 50 workers on 1 January of the year in which the work incapacity occurs.

This derogation (and in consequence the maintenance of the obligation to issue a medical certificate) must be provided for in the work regulations or in a collective bargaining agreement entered into at company level. 

Therefore, employers who fall within the conditions and wish to make use of this derogation should ensure as soon as possible that they amend their work regulations or conclude a collective bargaining agreement to this effect.

(*1) Doc. Parl., 2021-2022, Doc n°55 2875/001, p. 8
(*2) Doc. Parl., 2021-2022, Doc n°55 2875/001, p. 8