Leftover holidays? The do’s and don’ts in a nutshell.
The social partners reached an agreement yesterday to equalize the days of corona unemployment for the accrual of holiday rights for 2021. The next step is to see this intention translated into a regulatory framework. With this newsletter, we wish to highlight the rules of accrual, taking and carrying over holidays in general and more specifically in these special times based on the actual state of the law.
Accrual of annual leave. What are the basic rules?
According to the Belgian legislation on holidays, an employee accrues holiday rights based on her/his professional performance in the preceding calendar year. The calendar year during which the employee takes her/his holidays is referred to as the holiday year. The preceding calendar year, during which the entitlement is accrued, is referred to as the holiday reference year.
The same rules determine that an employee needs to take her/his legal holidays before the end of the holiday year. In other words, the employee is obliged to take all her/his legal holiday accrued in 2019, by December 31, 2020.
… but what about holiday rights for next year taking into account the COVID-19 crisis?
Many employees already would like to know the impact of temporary unemployment days on the holiday rights they accrue in holiday reference year 2020 for holiday year 2021.
The days of temporary unemployment due to force majeure corona (corona unemployment) used by many employers, have to be equalized to worked days for the accrual of holidays. This assimilation is limited to the period of 01.02.2020 – 30.06.2020. In other words: employees do not lose holiday rights due to corona unemployment days in that period.
Unfortunately, it is not clear yet if this assimilation will be extended as from 01.07.2020. We will of course keep you informed. Self-evidently, employers can always voluntarily assimilate all corona unemployment days to worked days.
Days of economic unemployment are entirely assimilated to worked days.
As a consequence of the COVID-19 crisis, my employee asks if (s)he can carry over holidays to the next year. Is that allowed?
The law states that carrying over leave is not allowed and that an employee who does not take all of her/his holidays consequently loses the non-taken days. A white collar worker can therefore not ask her/his employer to pay these days. These rules did not change as a consequence of the COVID-19 crisis: the legislator did not (yet) introduce an amendment to allow employees to carry over statutory holidays to 2021. We will of course keep you informed if this would change in the course of this year.
For blue collar workers the rules are different: they receive their holiday pay directly from the National Holiday Fund and this holiday pay remains acquired, whether or not they take all their holidays.
Please note that in practice, a lot of Belgian companies allow for a limited number of legal holidays to be carried over and to be taken within a limited timeframe.
What are the possible consequences for me as an employer if not all the holidays are taken?
As an employer, you have the obligation to ensure that your employees take their holidays. Not meeting that legal obligation can be sanctioned with an administrative and even a criminal fine.
In practice, you need to make sure to inform your employees sufficiently about the fact that they need to take their outstanding holidays. If your employee, notwithstanding your efforts to warn her/him, decides not to take the days (s)he is entitled to, then you will not risk any of the aforementioned sanctions.
What if it is not possible for my employee to take her/his holidays?
If the employment agreement of your employee was suspended, e.g. because of a long absence due to illness or if your employee could not take her/his holidays because of a force majeure, you need to pay the employee the balance of the outstanding legal holidays. The fact that the employee was on long-term temporary unemployment, is not considered as force majeure.
My company grants the employees extra-legal holidays on top of their legal holidays. What does the law state with regard to those days?
The Belgian legislation does not provide for a legal framework when it comes to extra-legal holidays. The practical consequence is that you as an employer can determine the playing field and can consequently state that extra-legal holidays can be carried over. We recommend to set forth the rules in the working regulations of the company.
How can I keep an overview of the outstanding holidays of my employees?
If your HR department does not have an own calendar to keep track of the holiday entitlement of the employees, Pro-Pay can assist with a practical tool. Your Easy Absence Planner (YEAP) can assist you in the management of all types of absences, including all sorts of leave. It is of the greatest importance to report all the absences of your employees in view of your legal obligations as an employer and the entitlement of the employee to certain social benefits.
With YEAP, the management and tracking of the holiday counters of your employees is really straightforward.
- Provide your employees with an overview of their outstanding legal holidays.
- Remind them of the rules regarding taking and carrying over holidays.
- If this has not yet been dealt with: Determine the rules regarding taking and carrying over extra-legal holidays, preferably in the working regulations.