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Vacation! It's almost time.

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Tanya Kruijer
  • 3 Min read
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Every year we look forward to the summer months. Despite the current situation, many families will still be able to leave on holiday, and fortunately many children can still enjoy a summer camp.

I recently read an article written by two lawyers regarding vacation and absence in the current situation.

These were their 5 FAQ's about vacation, absence and leave in “COVID-19 times”.

We thought this was worth sharing with you!

1. Can I oblige my employee to take a vacation?

Holidays are taken by mutual agreement between employer and employee. You cannot therefore unilaterally impose employees on their statutory vacation. Of course this can be discussed with the employees. If they agree to take statutory or extra-legal holidays, they can take holidays.

2. Can I oblige my employee to take catch-up rest for overtime hours?

No, the same principle applies. Catch-up rest cannot be imposed unilaterally by the employer because of the corona crisis. 

3. My employee has to stay at home and cannot work because his / her children are ill / cannot go to school.

If the employee is unable to work, even from home (homework), the employee may take leave for compelling reasons, or "family leave." Every employee is entitled to 10 days' leave for compelling reasons per year. This leave is unpaid. There are no costs for the employer. Taking this type of leave is a right for employees; employers cannot therefore refuse this leave.

Of course, the employee could also take paid statutory or any extra-legal leave, and any unpaid leave. In both cases, both employer and employee must agree.

In theory, parental leave could also be an option, but given the urgency and hopefully very temporary nature of the crisis, this is not the best choice for most workers (and employers).

After a call from the “Gezinsbond” and the “Ligue de Familles”, Belgium is currently also considering the introduction of a new leave system for parents with (young) children who cannot combine childcare and working from home. There is currently no concrete initiative.

4. My employee is ill himself. How do we justify his / her absence?

In that case, the general sick leave rules apply. If your employee is a white-collar worker, you must pay the guaranteed wages for the first month of sick leave. For a worker, you must pay the full guaranteed wages during the first seven days of sick leave and only part of the normal wages during the rest of the first month. After this one month / seven day period, the employee must claim benefits through the health insurance fund.

If the employee concerned is in a temporary unemployment scheme due to force majeure, he / she will not receive temporary unemployment benefits for the days of incapacity for work. During those days the employer pays the guaranteed wages or, later, the health insurance company a sick leave benefit.

5. If I suspect a Covid-19 virus infection, can I compel the employee concerned to undergo a medical examination?

In principle it is not possible to impose a medical examination on the employee concerned. However, if you suspect a Covid-19 virus infection, we recommend that you ask the employee to contact a doctor of his / her choice and follow the doctor's instructions. It is also possible to consult the prevention counselor - occupational physician, who can oblige the employee to undergo a medical examination.

When an employee wants to return to work after a Covid-19, it is possible to insist on a medical examination of the employee at the examining doctor before returning. 

When collecting employee health information, the employer must adhere to the GDPR and the rules for processing sensitive data. Also, as an employer, you may not discriminate based on the health status of your employees. If you do take measures that could lead to a distinction between workers, you must ensure that the measures have a legitimate purpose and are proportionate.

 

This article was written by Emmanuel Plasschaert and Evelien Jamaels, lawyers at the Brussels Bar (Crowell & Moring).

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