2022 brings a warm autumn in terms of HR law with (1) the labour deal, (2) new legislation on transparent and predictable working conditions, (3) new legislation on the work-life balance for parents and carers, and (4) changes to reintegration processes for sick employees and the termination of employment contracts on grounds of medical force majeure.
In a series of four Legal Eubdates, you will read what impact these measures could have on your HR policy.
In this third contribution, you will get an overview of the new rights of employees aimed at improving work-life balance for parents and family carers. An Act and a Royal Decree of 7 October 2022, and CLA no. 162 concluded in the National Labour Council on 27 September 2022, implement European Directive 2019/1158 on work-life balance for parents and carers in Belgian law.
Right to flexible working arrangements for employees with care responsibilities
Your employees with at least six months’ seniority can now apply for flexible working arrangements to:
- take care of their children up to the age of 12; or
- provide personal care or support to a person who lives in the same household as the employee or to a relative who is in need of significant care or support for a serious medical reason.
A flexible working arrangement can take various forms, such as remote working, a temporary adjustment of the work schedule or a reduction in working hours.
The employee must submit a written request three months before the desired leave according to the regulations of CLA no. 162. In principle, the arrangement can be requested for a maximum of 12 months. The employee can submit multiple requests during his/her career.
You can refuse this request, but you must then justify your decision within a month of receiving it. For the private sector, this is regulated by CLA no. 162.
An employee requesting a flexible working arrangement benefits from protection against adverse treatment and dismissal. As an employer, if you cannot prove that the adverse treatment or dismissal does not relate to the request, you risk being liable to pay lump-sum compensation.
New carers’ leave
Any employee may be absent for up to five consecutive or non-consecutive working days per calendar year to provide personal care or support to a person who lives in the same household as the employee or to a relative who is in need of significant care or support for a serious medical reason. The duration of this new carers’ leave will be credited to unpaid leave on compelling personal grounds.
The employee must notify you in advance verbally or in writing and subsequently provide a medical certificate from the doctor treating the person in need of care.
If you refuse lawfully requested carers’ leave, you risk a criminal or administrative fine. Moreover, employees who request carers’ leave enjoy specific dismissal protection: if you, as an employer, cannot prove that their dismissal is unrelated to the carers’ leave, they are entitled to lump-sum compensation.
General extension of dismissal protection
To safeguard the work-life balance of employees, employees who apply for or enjoy certain types of leave are granted additional protection against adverse treatment and dismissal. From now on, the preparation of a dismissal during the protection period is also covered by this dismissal protection, even if the employee is not dismissed until after the end of the protection period.
The non-renewal of a fixed-term or temporary employment contract is presumed to be related to the taking of such leave. As an employer, you will have to refute this presumption. Following the Act of 27 October 2022, birth leave, carers’ leave, parental leave, informal care leave, absence from work due to force majeure and flexible working arrangements, among other situations, are also covered by the protection granted by the Gender Equality Act. Any unfavourable treatment or dismissal on any of these grounds can trigger the liability to pay lump-sum compensation equal to six months’ wages.
The new right of employees to request flexible working arrangements is yet another focus for your HR policy. The new protection regime again puts a focus on the need to document your personnel files.