Sick during annual leave - employment law framing modalities

Earlier this year, leave legislation was amended so that leave days of employees who fall ill during their statutory leave days are converted into sick days.

On 31 July 2023, a law was published in the Belgian State Gazette that makes some amendments to the Employment Contracts Act and the Work Regulations Act in order to also correctly frame the new holiday rules in terms of employment law.

When an employee falls ill during his/her annual leave, all the normal rules on suspension of the employment contract due to illness apply. These include the obligations towards the employer, the possibility for the employer to send a control doctor and the rules on guaranteed income.

However, the new Article 31/2 of the Employment Contracts Act provides for some specific and additional obligations when the employee who falls ill during his/her holidays wishes to exercise the right to retain leave days:

  • The employee must immediately inform his/her employer of his/her residence address if he/she is not at his home address (i.e., even if he/she is abroad).
  • The employee always provides the employer with a medical certificate. This certificate states at least the following:
    • the incapacity for work;
    • its probable duration;
    • whether the employee is allowed to leave home.

If the employee wishes to take his/her “lost leave days” immediately after the period of incapacity for work, he/she must notify the employer when he/she provides him with the medical certificate. The holiday period is thus not automatically extended, but this is an option subject to the employer’s agreement.

Employers must include in the work regulations the formalities that employees must comply with to report their incapacity for work during a period of annual leave. The work regulations can easily be amended by the employer, as it is foreseen that the strict procedure to amend the work regulations does not have to be followed.

Key message

If an employee falls ill during a holiday period, there are additional obligations on the employee’s part. The employer is then obliged to include these additional obligations in the work regulations as of 1 January 2024.