The end of the calendar year beckons and colleagues are making arrangements for holidays between Christmas and New Year. Some colleagues, meanwhile, are already dreaming of their destination for summer holidays in 2023, but the overzealous colleagues at the end of the corridor don’t have time to take their holidays… So it’s high time to answer some frequently asked questions around holidays.
Accruing and taking holidays. Remind me how it works?
According to Belgian holiday legislation, an employee accrues holiday rights based on his/her performance in the previous calendar year. The calendar year in which the employee takes his holidays is called the holiday year. The previous calendar year, in which holiday rights are accrued, is the holiday service year.
The same legislation stipulates that an employee must take his legal holidays before the end of the holiday year. In other words, the employee has an obligation to take all statutory holidays accrued in 2021 by 31 December 2022.
… but then what about holiday entitlements for next year taking into account the COVID-19 crisis?
The days of temporary unemployment due to force majeure corona (“corona unemployment”) in 2020 and 2021 were assimilated to days worked for accruing holidays for holiday year 2021 and 2022.
For the year 2023, there is still no certainty about a possible extension of this equivalence. If this equivalence is not extended, days of coronal unemployment will not be automatically equated with days worked.
If there is a decision on this, we will certainly keep you informed. Of course, the employer is always free to consider all days of corona unemployment as working days.
My employee asks if he can carry over holidays to next year. Is this allowed?
Carrying over holiday days is not allowed under the letter of the law, and an employee who does not take all his holiday days consequently loses them. Thus, an employee cannot ask his employer to pay out the untaken holidays. This rule has not changed as a result of the COVID-19 crisis: the legislature has not made any legislative change in either 2021 or 2022 that would allow workers to carry over their statutory holidays to the following year.
For workers, things are different: they receive their holiday pay from the National Annual Holiday Service and this holiday pay remains vested even if they do not take all their holidays.
In practice, many Belgian companies allow a limited number of statutory holidays to be carried over at the employee’s request, which must then be taken within a certain period of time.
What are the possible consequences for me as an employer if not all holidays were taken?
As an employer, you have a duty to ensure that your employees take their holidays. Failure to fulfil this obligation can be sanctioned with administrative and even criminal fines.
In practice, you should ensure that you adequately inform your employees that they should take their outstanding holidays on time. If, despite your warnings, your employee still decides not to take all their days, you do not risk the sanctions mentioned above.
What if my employee is unable to take his holidays?
If your employee’s contract of employment was suspended, e.g. due to a long-term illness or if your employee was unable to take his holidays due to a force majeure situation, as an employer you must pay out the balance of the unused statutory holidays. The fact that the employee has been temporarily unemployed for a long time is not considered a force majeure situation.
My company grants employees extralegal holidays on top of their statutory holidays. What does the legislation say about this?
The legislation does not provide a legal framework for extra-legal holidays. In concrete terms, this means that, as an employer, you yourself determine the rules of play in this regard and can therefore stipulate that extra-legal holidays can be transferred. These ground rules are best laid down in the labour regulations.
How can I keep track of my employees’ remaining holidays?
If your HR department does not have its own calendar to keep track of employees’ holiday entitlements, Pro-Pay can help you with a handy tool. Your Easy Absence Planner (YEAP) can help you manage all absences, including all types of holidays. After all, it is also important to report other absences correctly in view of your legal obligations as an employer and the employee’s right to certain benefits.
With YEAP, getting or keeping track of your employees’ holiday counters becomes very easy.
- Provide your employees with an overview of their outstanding statutory holiday days.
- Remind them again of the rules on taking and carrying over holidays.
- If you haven’t already done so: define the rules around the take-up and transfer of non-statutory holidays, preferably in the labour regulations.