Belgium Introduces Changes to Annual Leave Entitlement
On March 16, 2023, a significant development occurred in Belgian annual leave legislation with the publication of a Royal Decree (“the Decree”) in the Belgian State Gazette. This Decree aims to align Belgian leave laws with the European Working Time Directive (Directive 2003/88/EC) and the case law of the European Court of Justice (C-518/20 and C-727/20).
The main objective of the Royal Decree is to bring about modification in the ability of employees to carry over their unused annual leave days and the protection of employees facing illness during their annual leave period. The changes introduced under the decree shall take effect from the 2024 holiday year.
Carrying Over Unused Annual Leave Days
Currently, under Belgian labor law, employees are entitled to a maximum of 4 weeks of annual leave per year, which must be taken before December 31 of the holiday year. Any unused annual leave days cannot be carried over to subsequent years at the end of the holiday year. Consequently, if an employee experiences an interruption of work, due to reasons such as illness, they forfeit any untaken annual leave days.
However, the Royal Decree amends the existing laws on employees to transfer their unused annual leave in specific circumstances.
Starting from the year 2024, employees will have the opportunity to take their unused annual leave within 24 months after the end of the leave year. This provision applies if the leave could not be taken due to certain grounds for interrupting work, including accident at work and occupational disease, accident and illness, maternity rest, converted maternity leave (in case of hospitalization or death of the mother), prophylactic leave, birth leave, adoption leave, foster care leave (limited to six days per year for certain formalities and contacts), and (long-term) foster parent leave. This change offers employees greater flexibility and ensures that they do not lose their entitled annual leave days due to unforeseen circumstances.
The annual leave pay for transferred annual leave shall be provided in the following manner –
- Blue-collar employees will receive their holiday pay during the leave year, as usual.
- White-collar employees will receive the holiday pay from the employer for the carried-over annual leave by the end of the leave year, no later than 31 December. As a result, white-collar employees will no longer receive annual leave pay when they take the transferred leave.
Payment of Holiday Pay for Transferred Leave
Both blue-collar and white-collar employees will receive their single annual leave pay for the transferred annual leave days in the leave year in which the annual leave should have been taken initially. Blue-collar employees will continue to receive their annual leave holiday pay during the leave year, as they currently do.
For white-collar employees, a similar arrangement has been introduced. The employer will pay the white-collar employee the pay for the annual leave carried over by 31 December of the annual leave year at the latest. Consequently, the employee will no longer receive holiday annual leave pay at the time of taking the transferred annual leave.
Leaves coinciding with Annual Leave
Currently, if an employee falls ill before the start of their annual leave and remains ill during the scheduled annual leave, they can make up for those “lost” leave days at a later date. However, if an employee falls ill during their annual leave, they are not eligible to receive sick leave; rather, they must utilize their annual leave days if they experience illness during their scheduled annual leave. these days are not converted into sick days, resulting in the loss of those leave days.
Starting from the leave year 2024, the decree shall amend the existing law on leaves coinciding with annual leave duration. Days of work interruption Interruption in work due to ordinary illness, an occupational disease, a (labor) work accident, maternity or paternity leave, birth leave, prophylactic leave, adoption leave, or foster parent leave/foster care leave will no longer be considered as annual leave, even if these cause leaves occurs during the duration of annual leave. These leaves will no longer be deducted from the total annual leave entitlement. Employees facing any of these grounds for suspension during their leave will no longer lose their annual leave days.
For example, if an employee falls ill during their scheduled leave period, those sick days will not be deducted from their annual leave entitlement. The employee will have the opportunity to reschedule and take those lost leave days at a later date.
Employers must inform their employees of the changes and prepare for the changes by proactively start reviewing their current policies and identifying areas that will require updates in accordance with the decree.