Belgium: New Dismissal and Discrimination Protection for Employees Undergoing Fertility Treatment
An Act has been passed to enhance the protection of employees undergoing fertility treatments. This act amends the Employment Act of 16 March 1971 and the Gender Anti-Discrimination Act of 10 May 2007.
As fertility treatments involve a series of examinations and procedures that demand a significant amount of time and often lead to frequent absences from work, new protective mechanisms are established to address these absences and their potential impact on the organisation of work.
The law entails two protections: a specific protection against dismissal and protection against discrimination.
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Dismissal protection
Firstly, employees are protected against dismissal. However, the employer must be notified through a medical certificate. The law does not specify any conditions for the content of this medical certificate, but it seems logical that the certificate needs to mention the fertility treatment. From the moment the certificate is communicated to the employer, the dismissal protection begins. It ends two months after that. In case the fertility treatment takes longer than two months, the employee will need to get a new medical certificate to give to the employer. During the protection period, the employer can only dismiss the employee for reasons unrelated to the absence due to fertility treatment. The burden of proof for these reasons lies with the employer. The employee has a right to request a written communication from the employer.
The act creates a right to be absent for fertility treatments, but it does not create an entitlement to paid leave. However, employers and employees can mutually arrange absences in various ways, such as temporarily adjusting the work schedule, taking justified leave without pay, taking paid leave, etc. Of course, if the employee is actually unfit for work due to the treatment, there will be an incapacity for work, which will be paid according to the normal rules.
In case the employee is dismissed due to reasons related to the absence for the fertility treatment, a protection compensation equal to 6 months of gross salary must be paid by the employer.
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Discrimination protection
Secondly, employees will be better protected against discrimination. Undergoing fertility treatment, which involves absences, should not have adverse consequences for the employee. This means that the employee is entitled to return to the same job and if that is not possible, to an equivalent or similar job. Any improvement in working conditions to which she could have been entitled during her absence and all rights acquired and in the process of being acquired during the absence. For these reasons, (absence due to) fertility treatments is added as a protected discrimination ground in the Gender Act.
In case of a breach, the employee is entitled to a fixed compensation equal to 6 months’ salary.
Both protection compensations for dismissal due to absence and discrimination can be cumulated. However, if a dismissal takes place after the protection period of two months, the employee can only claim the compensation for discrimination.
The new protections come into force 10 days after publication of the law in the Belgian State Gazette. The Act was recently approved by Parliament, but is not yet published.
