If I were to rank the employment law questions I receive by popularity, questions around long-term absence, absenteeism and generally how to deal with work incapacity would be right up there, a definite podium finish. The tension between the legitimate frustrations of employers and the no-fault nature of the employees’ absence seems eternal. To give the topic even more impetus, the Belgian government has now introduced a number of measures which aim to protect employees, reduce the cost of healthcare and combat workplace burn-out. All very worthy ambitions but the measures chosen will likely also cause significant headaches for employers.
The number of employees off work with “burn-out” has increased by 66% from 2018 to 2021. More than half a million are away from work due to long-term illness (including but not limited to burn-out). Even if we dismiss some of that as the product of the covid pandemic and a reluctance to face the commute again or shed the pyjamas and leisure-wear of homeworking for the suits or heels of the office, these numbers are worrying. The government has decided that the issue needs to be addressed. In a first phase, it has developed a sanctions mechanism focusing on both employees and employers:
After 10 consecutive weeks of absence, employees will be sent a questionnaire in which they are asked, among other things, about their state of health and whether they think they can go back to work or if adjustments could be to be made for them. If two employer requests to undertake a medical examination are ignored or rejected, the employee will be sanctioned: their state allowance will be reduced by 2.5 per cent.
For employers, a similar system of warnings is provided. Companies where at least three employees have been off work for at least twelve months (regardless of the medical reason and irrespective of the size of the employer once you get to over 50 staff) and where the number of employees on long-term illness is three times the average in the private sector and twice the average in the industry sector, will be required to pay an additional social contribution to the state of 0.635% on wages per quarter, 2.5% on an annual basis.
The mechanism only applies to companies with an average of 50+ employee measured over the year, and only employees under 55 years of age with at least three years’ service are taken into account.
Medical certificate no longer required for the first day of absence
A second measure aiming to reduce the pressure on GPs and the cost of our healthcare is the abolition of the requirement for a medical certificate for the first day of absence. Belgian law currently requires that a medical certificate be produced from the first day of incapacity onwards if the employer requests it or if the employee handbook provides for it (which most handbooks do, as a precaution against casual absence).
Going forward, employees will no longer be required to produce a medical certificate for the first day of their incapacity, only for two or more working days’ off. For the first day of absence, it will suffice for the employee to call in sick prior to the start of the work day.
Companies with less than 50 employees may still request a certificate as from Day 1. Also, there are limits to the government’s leniency: the exemption may be invoked no more than 3 days per calendar year by any given employee.
Discrimination Act will be changed to include “past health status”
Currently the Discrimination Act only prohibits discrimination on the basis of “present or future health status“. This implies that employees and candidates may in principle be discriminated against on the basis of a past illness from which they are now cured or in remission. For example, an employee who has had a burn-out in the past may be denied a promotion on that basis without being able to invoke discrimination on the grounds of health status.
A draft Act has been approved to change this by prohibiting discrimination on the grounds of “health status”, full stop. Going forward, an employer which discriminates on the basis of an employee’s past illness may be ordered to pay damages in a lump-sum amount of six months’ salary.
The change to the Discrimination Act will have an impact on the discussions following a termination for absenteeism. Assume that the employer relies upon the disruptive effect that the successive absences have on the business. Where the employee would argue discrimination on the basis of their health status, the employer could argue that the decision was based on their past health status and so side-step that complaint. This argument has not been a sure-fire winner every time — certain courts and legal scholars make the case that the past is very often predictive of the current and future status, so it is about the employee’s present and future health after all, with the past merely being used to shed some light on it. The changes to the Act will kill off this particular debate entirely.
This does not mean that a distinction in treatment based on health status is prohibited in all circumstances. If the employer can justify the difference in treatment on the basis of a legitimate aim and the means of achieving that aim are necessary, there is no unlawful discrimination. The disruptive effect of successive absences can be demonstrated for example, but please note that the Employment Tribunals are very demanding when it comes to the burden of proving that the employer had no real alternatives but to terminate the employment contract.
Each of these measures is scheduled to be voted on in Parliament after the summer. Changes may be required to your employee handbook and the already-tricky termination of an employee for repeated or extended sickness absence will get more so.