Off Days and sickness

Before 2024, in Belgium, the principle of “first suspension prevails” was in effect, meaning that if a worker fell ill during their vacation, they lost those vacation days without the possibility of recovering them later. However, the Court of Justice of the European Union challenged this rule, stating that a worker should be able to benefit from their four weeks of annual leave to relax, even if they fall ill during that period. Consequently, Belgian legislation was amended starting in 2024 to allow workers to reschedule their lost vacation days due to sickness, subject to certain formalities.

In a specific case, an employer had implemented a priority system for unused vacation days by their worker. Recovery Days Off (RDT), seniority leave, and legal leave days were all accounted for separately. The employer expected the worker to be able to reclaim these days later on.

However, the social secretariat strictly applies the rules of the new legislation. “Annual holidays” are not clearly defined but are interpreted as “legal leave days,” including youth holidays, senior holidays, and European holidays. As for other days such as RDT days and seniority leave, the previous rules still apply, meaning that “first suspension prevails.”

Therefore, in the case of the mentioned worker, only the legal leave days were converted into sick days with guaranteed pay, while the RDT days and seniority leave retained their original status. Consequently, the worker will only be able to recover two vacation days later on, instead of the initially planned five days.

This new regulation not only concerns sick days but also applies to maternity leave, paternity leave, participation in courses or study days, prophylactic leave, birth leave, adoption leave, care-related leave, and foster care parental leave.

In summary, when workers fall ill during their vacations, they can only receive guaranteed pay for certain days, depending on the type of leave and the rules applicable to each category of vacation days.