Inform your employees: it’s time to take up outstanding holidays (or isn’t it?)
29 Oct 2024
With the end of the calendar year fast approaching, employees who still have outstanding days of leave must make sure to schedule them before 31 December 2024, so as not to lose them. Indeed, as a general principle, the statutory days of leave to which employees are entitled in a given year must be taken up before year’s end and cannot be transferred to the next one. However, with the latest update of the regulations on annual leave, some notable exceptions to this principle were introduced, which will now apply for the first time.
General principles
The right to take annual leave is a fundamental right that cannot be waived by the employee. In principle, the days of leave an employee’s entitled to in a given calendar year must therefore be used by 31 December of that year. That means it’s prohibited to transfer any outstanding days of leave to the next year, or to have them paid out at the end of the year.
Until now, the only exception to this rule was that, if – by the end of a given year – it proved impossible for a white-collar worker to take up all days of statutory leave (e.g. due to long-term suspension as a result of illness, but not because of a busy schedule), the employer had to pay out these outstanding days of leave by 31 December of that year at the latest. For blue-collar workers, no action was required by the employer as their full holiday pay is paid out by a Holiday Fund.
It’s important to point out that, contrary to statutory days of leave, extra-legal days of leave can be carried forward to the next calendar year, if the source of law by which these days of leave are attributed (collective bargaining agreement, work regulations, company policy …) provides for this possibility.
New possibility to retain holiday entitlements
On 1 January 2024, an update to the regulations on annual leave entered into force, which modified these regulations on several aspects to bring them in line with the relevant EU legislation. The first of these changes pertained to safeguarding employees’ entitlement to leave if they get sick during a period of annual leave. The second one introduced the possibility to, if certain conditions are met, carry days of leave that weren’t taken up by the employee forward, beyond 31 December of the year in question. With the end of 2024 coming up, this marks the first time when this possibility can be used in practice.
Going forward, employees who were unable to take up the entirety of their days of leave in a given calendar year because, for (a) period(s) during that year, their employment agreement was suspended for one of the below listed reasons, will retain their entitlement to the outstanding days of leave. More specifically, they will still be able to take up these days of leave during the 24 months following the end of that calendar year.
industrial accident or occupational illness;
incapacity for work due to an accident or illness;
converted maternity leave;
birth leave;
prophylactic leave;
adoption leave;
foster care leave.
For white-collar workers who find themselves in this situation, the employer must pay out the holiday pay that’s still due for the outstanding days of leave by 31 December of the year in question. This means that, when the employee takes up one of these transferred days of leave afterwards, they will not receive any salary. If an employee were to leave the company and would still have transferred days of leave outstanding, this must be mentioned on the holiday certificate. For blue-collar workers who transfer outstanding days of leave, no action is required by the employer as they receive their holiday pay from a holiday fund.
The current system whereby a white-collar worker cannot transfer outstanding days of leave after the end of the year, but can have them paid out if it proved impossible to schedule them is kept, but limited to a number of very specific grounds of suspensions, such as the complete removal from work as a measure of maternity protection or exercising a public office.
The ‘impossibility to take up statutory leave’
In order for an employee to transfer outstanding days of leave, resp. have them paid out, it must have been impossible for them to take up all of their leave as a result of one of the qualifying periods of suspension of the employment agreement. The holiday legislation doesn’t provide further guidance on how to interpret this notion, but it’s clear that it’s a factual assessment that’s not always easy to make and that – barring further explanation in the legislative texts – should be interpreted restrictively.
Conclusion
As of this year, employers will have to take into account the new regulations on transferring outstanding days of leave beyond the end of the calendar year. It’s still recommended to thoroughly keep track of your employees’ outstanding days of leave and, if applicable, encourage employees who still have days outstanding to take them up before year’s end. If you have employees who qualify for the transfer of outstanding days of leave, you will have to separately keep track of how many of these transferred days are still outstanding during the 24 month period in which they can be taken up.
For the sake of completeness, note that – in the framework of the ongoing negotiations for a new federal Belgian government – one of the employment-related proposed measures concerns further expanding the possibility of transferring outstanding days of leave. It’s, however, at this stage unclear what the modalities of this new measure would look like or if it would eventually be retained once a final government agreement is concluded. We will of course keep you posted on these developments.
If you have any question regarding this latest update of the legislation on annual leave or would like more guidance, don’t hesitate to reach out; we’d love to hear from you.
