Belgium: Legislator approves assimilation of periods of Absence for the Extension of Maternity Leave

The legislator equates, among others, periods of temporary unemployment and incapacity for work with time worked for the granting of post-natal maternity leave of up to 15 weeks. In this way, pregnant workers are no longer disadvantaged by absences that occur outside their control.

Article 39 of the Labour Act of 16 March 1971 allows pregnant workers who have continued to work during the six weeks preceding the birth of their child, to extend their maternity leave by five weeks after the nine weeks of compulsory post-natal rest. These five weeks are therefore optional and can be taken either before the birth or after compulsory post-natal rest.

This allows workers to choose whether they need more pre-natal or postnatal rest. However, this choice did not apply if the worker was unable to continue working beyond her control before the birth of the child. This means, for example, that a sick worker who was unfit for work during the period prior to childbirth was not entitled to extend her post-natal rest, since she had not continued to work during the prenatal period.

The social partners in the National Labour council asked in December 2019 (in advice no. 2.153) for time to investigate the optimal method to achieve a phased assimilation of periods of absence with periods worked. However, the COVID-19 crisis has expedited the introduction of this equivalence, as many pregnant workers have been put, against their will, on temporary unemployment by their employers, which had the added impact in that those workers would therefore lose the option of extending their post-natal rest. Although the initial aim of the act was only to assimilate the period of temporary unemployment due to the coronavirus, a law was finally adopted in the Chamber of Representatives on 4 June 2020, providing for a much broader assimilation. It deals in particular with situations of:

• temporary unemployment due to force majeure;
• economic unemployment for white-collar workers;
• incapacity for work; and
• complete removal from work (protective measure by the employer).

In these cases, the worker will be able to extend her post-natal rest to 15 weeks. The law will apply retroactively from 1 March 2020, and will therefore also have consequences for current and recently ended pregnancies. At the time of publication, the Act had not yet been published in the Belgian Official Gazette..

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