New rules for legal annual leave as from 2024
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To bring Belgian legislation in line with the case law of the Court of Justice of the European Union, the rules on the concurrence of holidays and suspensions will be adjusted from 2024. In this newsletter, we discuss the new rules and modalities, which will apply when an employee takes these holidays. These changes will take effect only next year and will not impact your employees' holidays this year.
Concurrence of illness and holidays
When illness and holidays coincide, an employee currently receives only a guaranteed salary if he falls ill before the start of his holiday. If the employee falls ill while on holiday, the principle "first suspension prevails" applies. The absence days remain holidays and the employee cannot take them at another time when he is not sick. The latter is contrary to the European Employment Directive and the case law of the Court of Justice: the Court is of the opinion that sick days are for healing, while holidays are for rest and relaxation.
From 1 January 2024, holidays coinciding with an accident at work or an occupational disease, a regular illness, a regular accident, a maternity leave, a paternity leave, a prophylactic leave, an adoption leave, a foster care leave or a foster parent leave can be taken later in the holiday year. This means that these holidays are no longer lost and are added again to the legal annual leave of the current holiday year. This rule does not apply to all other cases of suspension.
In the specific case of illness, the employee is then entitled to a guaranteed salary for the period of illness.
In order to benefit from these new rules and to be entitled to a guaranteed salary during the holidays in the specific case of illness, the employee will have to meet certain conditions. The employee will have to inform his employer immediately where he will stay during his illness if it is an address other than his home address. He will also always have to provide a medical attestation to the employer within the normal time period applicable in the enterprise, even if this is not explicitly provided for in the working regulations, stating the probable duration of the illness and, for the purpose of control, whether the employee is allowed to move to another location.
Within the same period, the employee who wishes to take his unused vacation days immediately after the ongoing vacation period must communicate this request to the employer. The ongoing holiday period is not automatically extended by the days not taken.
These new modalities should also be included in the working regulations.
Carry-over of untaken holidays
There will also be new rules on the transfer of holidays as from 2024. Currently, legal holidays cannot be carried over to a next holiday year and are lost if not taken. If the reason for not taking holidays is due to the abovementioned absences and they cannot be taken during the holiday year, these holidays must be carried over. Unused holidays in these cases of suspension must be granted within 24 months following the end of the holiday year.
The holiday pay is paid out to the white-collar workers no later than 31 December of the holiday year. Blue-collar workers keep receiving their holiday pay through the holiday fund.
When a white-collar employee leaves the company, the holiday certificate must also state the number of holidays carried over.
Action
! The Royal Decree will apply for the first time for the holiday year 2024, holiday service year 2023.
! The new modalities should be included in the working regulations, without having to follow the specific procedure to amend the working regulations.
