international employment law firm alliance L&E Global
Belgium

Belgium: Important changes to the Belgian rules regarding annual paid leave

On 16 March 2023, a Royal Decree was published in the Belgian Official Gazette which amends the Royal Decree of 30 March 1967 on the implementing provisions of annual leave. The changes are aimed at ensuring that the Belgian rules are in line with the EU Working Time Directive and the case law of the European Court of Justice. The Royal Decree will apply to holidays taken during 2024 for the first time.

Currently, if an employee becomes ill during their holidays, the employment contract is suspended due to annual leave and not due to illness, as the first suspension prevails. This means that the employee “loses” their holidays, which is not in compliance with the Working Time Directive. The Directive requires that an employee can enjoy at least four weeks of annual leave, and if the employee is sick, they are not able to rest and enjoy their free time. If an employee falls ill before their holiday, there is no problem because the employment contract is suspended due to illness, and holidays can be taken at a later time. Furthermore, employees cannot transfer days of paid leave to the next calendar year, and any untaken leave days are paid out at the end of the year.

The new rules ensure that employees who become ill during their holidays will no longer lose their holidays but allows them to take these holidays on a later date. This brings Belgium in line with the EU Working Time Directive and the case law of the European Court of Justice.

It will also be possible to transfer untaken days of paid leave to the next year if certain cases of suspension occur. These cases include an accident at work, occupational disease, other accidents and illnesses, paternity leave consisting of converted maternity leave, prophylactic leave, birth leave, adoption leave and foster care leave. In such cases, untaken holidays can be used up to 24 months after the end of the holiday year.

An example to clarify: An employee has 7 days of holiday left on 1 December 2024 and wishes to take them around the Christmas period. The employee falls ill from 16 to 31 December 2024 and cannot take these days in 2024. These 7 days can still be taken until 31 December 2026.

Under the new regulation, an employee can also transfer untaken holidays to a new employer if they change jobs. The untaken holidays will be recorded on the holiday certificate.

An additional question arising out of the new rules is how holiday pay will be paid out for the transferred holidays. Blue-collar workers receive their holiday pay during the year and thus have already received the holiday pay for the transferred holidays. This means that the transferred holidays are paid out during the holiday year and not when the worker actually takes them. For white-collar workers, if they have remaining holiday days at the end of the year that are transferred to the next year, the holiday pay for the untaken holidays is paid out in the month of December of the holiday year. Similar to the situation for blue-collar workers, this implies that the transferred holidays are paid out in the holiday year and not when the employee takes them.

To transfer holidays, the employee must inform the employer immediately of the suspension of the employment contract due to illness and provide the employer with a medical certificate. The employer has the obligation to convert the holidays to sick leave and must pay guaranteed wages. A model medical certificate will be developed by the legislator for use in such cases. If the doctor does not use this model medical certificate, the employee must explicitly inform the employer that they want to take the holidays at a later time. The employer can still send a control doctor to the employee to examine them.

In summary, the new regulation means that untaken holidays may no longer be paid out at the end of the year and must be effectively taken within 24 months of the end of the holiday year. The white-collar worker or blue-collar employee will receive the holiday pay for the transferred holidays before they take these days. A model medical certificate will be developed by the legislator. A possible consequence of the new regulation is that there will be blue- or white-collar workers who will de facto have more than 4 weeks of leave from 2025 onwards.