Belgium: Transposition of the EU work-life balance Directive
By Alliant Global Knowledge Center
Effective 10 November 2022, a new law and a royal decree jointly implementing the EU Directive 2019/1158 of 20 June 2019 on work-life balance for parents and carers. The new legislation amends some features of the existing family leave, e.g., maternity, paternity, parental leave, which are now referred to as birth leaves, but also introduces a new carers’ leave, and the possibility to request a flexible working arrangement to care for a child or a loved one. The legislation also strengthens employment protection provisions related parents and carers taking certain family or thematic leaves or who have reduced their working time.
Although existing legislation in Belgium was already closely in line with many of the minimum provisions of the EU Directive 2019/1158 particularly regarding family-related leaves, certain amendments were needed to fully align local legislation with those of the EU Directive.
This article covers the most notable amendments, namely:
- The introduction of a new carer’s leave
- Flexible working arrangement for carers
- Enhanced employment protection for parents and carers taking various leaves
The amendments concern all employers and their employees. Collective bargaining agreements may provide for more favorable terms for employees.
New Carers Leave
With the introduction of the new carers leave within the existing thematic leave framework of up to 10 days of unpaid leave for compelling reasons, effective 11 November 2022 employees are annually entitled to 5 days of leave to care for a seriously ill family member. In other words, these days count as part of an employee’s entitlement to unpaid leave for compelling reasons (i.e., are deducted from the total 10 days of annual entitlement). This new thematic leave is covered under enhanced employment protection rules (see below).
Flexible work arrangement for carers
In addition to the new carers leave, the new legislation allows employees to request flexible working arrangement to care for children or loved ones.
Effective 10 November 2022, any employee with a minimum of 6 months service with a current employer is entitled to request flexible working arrangements for a maximum period of 12 months (which is renewable) to care for:
- Care for their child or their partner’s child, an adoptive child or a long-term foster child under the age of 12 years or;
- To assist a family or household member requiring extensive care for medical reasons, which must be supported by a medical certificate.
Concept of flexible work arrangements
The concept of flexible work refers to changes in the employee’s workplace, work schedule, working hours, and or working time.
Requesting flexible work
An employee must request for flexible work arrangements in writing at least 3 months prior to the start date of the flexible working arrangements. In turn the employer must reply, also in writing, within 1 month.
Upon receiving an employee’s request, the employer has various options, namely, grant the request, deny it, defer the request, or propose alternative arrangements. Unless the employer grants the terms of the employee’s request, the employer’s response must include a reason not granting the terms requested by the employee.
Employment protection rules enhanced
The new legislation strengthens employment protection for parents and carers taking various family-related leaves, including the new carer's leave,
An employer cannot terminate an employee because they take a career break, reduce their working hours, or takes a thematic leave (which now also including the carer's leave).
While under the provisions of the new legislation the employment protection period remains unchanged, the key change is that if an employer notifies an employee of their termination after the end of the employment protection period (i.e., more than a month after the requested start date or more than 3 months after the end of the leave), but the employee can demonstrate that the termination was already under consideration during the employment protection period, then the termination will fall under the protection.
Furthermore, the burden of proof of the reason for termination is now on the employer, who must now justify a termination. The employee can request a written notification of the reasons for their termination.
The employment protection period (unchanged) starts on the mutually agreed date, or the day of the employee’s request in cases where the employee is entitled to a career break, or a reduction in working time, or a thematic leave. The employment protection period ends 3 months after the end of the leave, or the end of an employment contract suspension, or the end of the reduction in working time.
In cases where the suspension of work or the reduction of working time has not started (for example in case of an employer’s refusal or an employee’s withdrawal of a request), the employment protection ends 1 month after the requested start date.
If the termination is ruled illegal, the employer must pay the employee a one-time compensation equal to 6 times the employee’s gross monthly salary, without affecting the compensation due upon termination of an employment agreement. However, this compensation cannot be combined with other employment protection indemnities.
The amendments to existing legislation resulting from the transposition of Directive (EU) no. 2019/1158 have, introduced a new thematic leave and new flexibilities for employees resulting in related obligations for employers, including compliance with enhanced employment protection rules for parents and carers taking various family-related leaves, including the new carer's leave,
Moving forward, employers will have to comply with their new obligations in terms of granting the new carer’s leave, agreeing, or denying employee requests for flexible working arrangement for carers, and the new enhancements to employment protection for parents and carers taking various types of family-related leaves.
Law of 7 October 2022 partially transposing Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on the balance between professional and private life for parents and carers and repealing Directive 2010/18/EU of Council, and regulating certain other aspects relating to leave (Loi du 7 octobre 2022 transposant partiellement la Directive (UE) 2019/1158 du Parlement européen et du Conseil du 20 juin 2019 concernant l'équilibre entre vie professionnelle et vie privée des parents et des aidants et abrogeant la directive 2010/18/UE du Conseil, et réglementant certains autres aspects relatifs aux congés) which was published in the Official Journal (le Moniteur belge) on 31 October 2022, and entered into effect 10 days after its publication in the Official Journal, i.e. 10 November 2022.
Royal Decree of 7 October 2022 partially transposing Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on the balance between professional and private life for parents and carers and repealing Directive 2010/18/EU of the Council (Arrêté royal du 7 octobre 2022 transposant partiellement la Directive (UE) 2019/1158 du Parlement européen et du Conseil du 20 juin 2019 concernant l'équilibre entre vie professionnelle et vie privée des parents et des aidants et abrogeant la directive 2010/18/UE du Conseil), which was published in the Official Journal on, and entered into effect 10 days after its publication in the Official Journal, i.e. 10 November 2022.
Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, which was published in the EU Official Journal on 12 July 2019.