Update on maternity leave and suspension of the employment contract: a sigh of relief
09 Jun 2020
Some weeks ago, we published an article on the impact of temporary unemployment on the pregnancy leave of employees. Due to a recent intervention of the legislator, this impact has been minimised.
A quick recap
Pregnancy leave of an employee can last up to 15 weeks or, in the case of multiple births, 17 weeks. The Labour Act of 16 March 1971 provides that this leave consists of two periods:
a prenatal leave of maximum 6 weeks (in the case of multiple births 8 weeks). Only the last week has to be taken up before the expected birth date;
a compulsory postnatal leave of 9 weeks, starting either on the date of birth or, if the mother worked on the birth date, on the day after the birth.
At the request of the employee, the postnatal leave can be prolonged with the number of days equal to the duration of the period in which she continued to work from the 6th week before the actual date of child birth (or from the 8th week in the case of multiple births). In practice, as most expectant mothers want to spend as much time as possible with their new-born baby, this prolongation is mostly chosen.
As we indicated in our previous newsletter on this topic, temporary unemployment due to force majeure (among other things), was previously not included in this exhaustive list. The days that a mother was put on temporary unemployment due to force majeure in the 6 weeks leading up to the birth were previously not treated as working days. Due to COVID-19, a lot of Belgian employees, however, were put on temporary unemployment due to force majeure. Consequently, the negative impact of this situation on the pregnancy leave of employees was flagged up.
New legislation
As a result of the lobbying done by several stakeholders, the legislator intervened and, on 4 June 2020, a bill proposal was adopted in the plenary sessions of the Belgian Chamber of Representatives. It provides that, starting 1 March 2020, the days of temporary unemployment due to force majeure will be treated as working days.
Also, days of temporary unemployment for economic reasons are considered equal to working days in this period for both white-collar and blue-collar workers. (Previously, such equalisation was only possible for blue-collar workers.)
The legislator did not stop just there, however. Since several bill proposals regarding the equalisation of other types of suspension to activity days were already pending, use was made of the momentum to add several amendments to the bill proposal. As a result, also days of absence of a pregnant employee during the last six weeks before her due date due to
illness or accident, or
the (partial) suspension of the employment contract due to risk for pregnancy,
are treated as activity days.
As a result, every woman finding herself in one of the above situations will still be able to prolong her postnatal leave with the number of days for which she was put on temporary unemployment in the weeks leading up to the birth.
The rule that a pregnant employee is given an additional week of postnatal leave because she lost five weeks of prenatal leave due to illness has been abolished. An exception, however, has been included for pregnant women who have already lost the right to these five prenatal weeks due to illness and would not be able to benefit from the above equalisation. To prevent these women from falling between the two regulations, they are still entitled to the extra week of postnatal leave.
Please note that there is no limitation to the crisis period for this legislation, but it does take retroactive effect back to 1 March 2020.
Key takeaways
Due to an intervention of the Belgian legislator, a bill proposal was adopted that provides that, starting 1 March 2020, the following forms of absence of a pregnant employee during the last six weeks before the due date of delivery are considered equal to activity days: incapacity for work due to illness or accident, temporary unemployment due to force majeure or for economic reasons (for white-collar workers), and absence as a result of the (partial) suspension of the employment contract due to risk for pregnancy. A pregnant employee finding herself in one of these situations can therefore transfer the five weeks to her postnatal leave.
If you require any further information or guidance on this topic, please do not hesitate to contact us.
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