Changes to the regulations on annual leave
24 Mar 2023
A recently adopted Royal Decree aims to bring the Belgian legislation on annual leave in line with the European Working Time Directive – which requires Member States to ensure that an employee can enjoy at least four weeks of paid leave each year – and the way the Directive is interpreted by the European Court of Justice.
Presently, employees for whom it’s impossible to take up all of their statutory vacation days – e.g. because of prolonged periods of incapacity for work – during the holiday year cannot transfer their outstanding leave to the next year. In addition, a number of types of inactivity, such as illness, can currently not be charged to the employee’s holiday balance, except if they happen during a period of planned holiday. In other words: an employee who gets sick before their planned leave doesn’t lose any vacation days, however, if the same employee gets sick during their vacation, these sickness days will still be considered vacation days and charged to the employee’s holiday balance. Both of these principles run contrary to the provisions of the Working Time Directive.
The newly adopted Royal Decree will remedy this non-compliance as of holiday year 2024. As from that year, firstly, the below types of inactivity can never be charged to the employee's annual leave balance, even if they occur during a period of planned leave:
industrial accident or occupational illness;
illness or accident;
maternity leave;
birth leave;
prophylactic leave;
adoption leave;
foster parent leave.
This means that, if an employee e.g. gets sick during their planned leave, they will still be able to take up the days of leave that they couldn’t benefit from at another time, later during the holiday year. The employee must duly inform their employer of their illness and must moreover explicitly indicate that they’ll want to take up the affected days of leave another time.
Secondly – also as from holiday year 2024 –, if an employee is unable to take up all of their statutory leave during the holiday year because of periods of absence that resulted from one or more of the above-listed types of inactivity, they will be able to transfer the outstanding leave after the end of the holiday year. More specifically, they will still be able to take up this transferred outstanding leave during a period of 24 months following the end of the holiday year to which the leave pertains. For those days of outstanding leave, the employer has to pay the employee's holiday pay at the end of the holiday year to which the days of leave relate and the days of transferred outstanding leave also have to be mentioned when a holiday attestation is drawn up.
Some more legislative work is expected to iron out a number of details related to these changes – inter alia with respect to the employee’s requirement to duly inform their employer of an illness during their vacation –, however, it’s clear that the new regulations will have to be taken into account as from holiday year 2024.
If you have any questions regarding the above, don’t hesitate to reach out; we’d love to hear from you.
