All employees with an employment contract with an employer in the private sector, as well as all persons working to acquire vocational training (apprentices), are entitled to paid leave each year. These days of leave count towards determining weekly working time.
Leave for apprentices must be granted during vocational education holidays.
All calendar days, except Sundays and legal holidays, are working days.
It should be noted that the 26 days of annual leave provided for by law are a minimum. A collective labour agreement, or even an individual agreement between an employer and his employee, can increase the number of days of leave granted to employees.
For certain categories of persons, the figure of 26 days of leave is automatically increased.
These are:
war invalids, persons with an industrial accident and persons with a physical, mental, psychic, psychosocial or sensory disability. They are entitled to an additional six days’ leave per year, the cost of which is borne by the State;
employees of mines and mining companies. These people are entitled to an additional three days leave per year;
employees whose service does not allow for an uninterrupted rest period of 44 hours per week: After determination by the Inspectorate of Labour and Mines, the additional leave granted to these persons may amount to six days per year, i.e. one day for each full period of eight weeks, whether successive or not, during which this uninterrupted rest period of 44 hours was not achieved.
Is the length of the leave based on the physical or mental abilities of the worker?
Employees who have a reduced capacity to work due to an accident or disability are entitled to additional leave of absence of six days per year.
The employees concerned are those with the following status:
war invalids;
persons with work-related injuries;
disabled workers.
The costs of this additional leave, which are in addition to the 26 days of regular leave, are not borne by the by the employer, as opposed to the State.
How is the leave of a part-time employee calculated?
For an employee working part-time (e.g. 24 hours per week), the 26 days of leave are prorated according to the weekly working time.
The formula used is as follows:
(26 days leave x 8 hours x hours worked per week) / 40
The result is annual leave not in days, but in hours.
In our example of an employee working 24 hours per week, the annual leave amounts to:
(26 x 8 x 24) / 40 = 124.8 hours.
When can an employee take days off?
In principle, the employee is entitled to take all of the leave due for a given year as of 1 January.
There is, however, an exception for newly hired employees. These persons must wait three months before they can take leave, even though their leave entitlement exists from the first day of employment. This waiting period applies both to an employee with a permanent contract and to a person working under a fixed-term contract. However, it does not apply to temporary agency workers.
Leave is determined according to the wishes of the employee who submits a request for leave to his employer. If the employer does not object, it is assumed that the leave request has been granted.
Leave may be taken in one go, unless the needs of the service or the substantiated requests of the employee require a split, in which case one of the fractions of the leave must correspond to at least two calendar weeks.
If requested by the employee, leave must be scheduled at least one month in advance.
There is, however, one case in which the employer can take the initiative to determine the period of leave: collective leave when the company is closed for annual leave.
The law does not set a maximum number of days of leave that can be taken as collective leave.
This collective leave must always be determined by mutual agreement with the employees or, if applicable, with the employee delegation, during the first three months of the reference year.
If collective leave is longer than the individual leave to which the employee is entitled, the difference shall be taken into account in full as statutory leave.
Do the employee and the employer have to keep the dates for holidays once they have been set?
Once set, leave dates must be kept to by both the employee and the employer.
A judgment dated 25 October 2018 (n°44386) states that the once leave has been granted by the employer it is an irrevocable unilateral act, which can only be retracted with the employee’s express and unequivocal agreement.
An employer may refuse to grant an employee’s request for leave if it is inconsistent with:
service requirements;
substantiated requests of other employees.
It should be noted that according to case law, it is up to the employee to ensure that he/she has the formal agreement of the employer to his/her request for leave before being absent for such a reason. Otherwise, the employee may risk having his absence considered as unjustified.
The law obliges the employer to keep a register in which employees’ holidays must be recorded.
In the event of a dispute, it is not up to employees to prove that they are entitled to leave, but rather to the employer to prove which days of leave have been taken by said employees.
Nevertheless, it is recommended that employees submit requests for leave in writing so as to avoid difficulties in establishing that their absence was indeed due to authorized leave if necessary.
How is the remuneration received by employees during leave periods calculated?
A distinction must be made:
An employee receives a more or less stable remuneration each month.
For each day of leave, that employee is entitled to an indemnity corresponding to the average daily wage of the three months preceding the taking of the leave.
The average daily wage is calculated by dividing the gross monthly pay, including benefits, by the number of hours worked per month (173 hours for an employee working 40 hours/week) and then multiplying this figure by 8.
An employee’s remuneration varies from month to month.
If the salary is subject to strong variations or if it consists of a variable part in the form of commissions, the holiday pay must be calculated on the basis of the average salary of the 12 months preceding the holiday.
Please note that non-periodic benefits such as bonuses, paid 13th month or performance bonuses are not taken into account when calculating the holiday pay.
The law requires that an employee’s leave be taken in kind. It is therefore strictly forbidden to replace it with paid compensation. Only in the case of termination of the employment contract is it possible to pay compensation for the leave not taken before the end of the employment relationship. An employee is entitled to one twelfth of his annual leave for each full month worked. Fractions of a month exceeding 15 calendar days shall be counted as a full working month.
Is it possible to carry over the leave from one year to the next?
In principle, leave must be taken and granted in the year for which it is due.
There are, however, some exceptions to this principle:
Pro-rated leave for the first year of employment with an employer may be carried over to the following year at the request of the employee.
Leave not yet taken at the end of the year due to operational requirements or the substantiated wishes of other employees may be carried over to the following year until 31 March.
The law provides that annual leave not yet taken at the beginning of maternity leave may be carried over within the legal time limits. In addition, the period of maternity leave is considered to be a period of actual work and therefore entitles employees to annual recreation leave.
However, full-time parental leave does not entitle employees to annual recreation leave. However, annual leave not yet taken at the beginning of parental leave is also carried over within the legal time limits. The only limit imposed by the law is that the legal time limits must be adhered to, i.e. 31 March or 31 December of the year, depending on the date on which the employee resumes work.
Case law has consistently ruled that leave that could not be taken before the end of the year due to prolonged illness could not be carried over to the following year. This leave was therefore lost, unless the employer and the employee agreed otherwise. A judgment of the Court of Justice of the European Communities (now the Court of Justice of the European Union) of 20 January 2009 (C-350/06 and C-520/06) reversed this position, stating that employees do not lose their right to paid annual leave if they were unable to take it because of illness. National courts have since applied this solution.
(Last update 07.072022)
Is there a time limit to the leave deferral?
The carry-over of the proportional leave from the first year of employment with an employer is unlimited in that it can be carried over to the following year.
On the other hand, the postponement of leave not taken due to the needs of the service or the wishes of other employees is limited in time, whereas postponed leave must imperatively be taken before 31 March of the following year. After this date, the leave days are definitively lost for an employee, unless the employer continues to deny leave requests for reasons related to the needs of the service or the justified wishes of other employees. Agreements to the contrary between the employer and the employee may provide an exemption from this principle and allow the leave to be carried over to the following year.
If an employee becomes ill during his leave so that he can no longer enjoy his leave, the days of illness recognized as such by a medical certificate shall not be considered as days of leave.
The leave must then be rescheduled by mutual agreement between the employer and the employee.
If the employee is in Luxembourg, he must notify his employer by medical certificate within three working days. If he is abroad, he must take all necessary steps to ensure that the certificate reaches the employer as soon as possible.
Can leave not taken due to illness be carried over to the following year?
Until 2009, illness was not recognized as a reason to carry over leave from the current year to the next.
A ruling of the Court of Justice of the European Communities (now the Court of Justice of the European Union) of 20 January 2009 reversed this position.
The Court decided that national legislation which provides that the right to annual leave lapses at the end of the reference period or of a carry-over period without the employee having had the opportunity to exercise his right to leave is contrary to Directive 2003/88/EC concerning certain aspects of the organisation of working time.
This leads to the following conclusions:
Illness constitutes a reason to postpone a current year’s leave not only until the end of the postponement period, which corresponds either to the period until the end of the following year in the case of the pro-rated leave of the first year of employment, or to the period until 31 March of the following year in the normal case of annual leave not yet taken, but even beyond, until the end of the postponement period, if an employee was unable to take his leave.
If the leave could not be taken at a later date because the employment contract has been terminated, either through termination of the employment contract or because the contract’s end date has arrived, then financial compensation for the remaining leave not taken shall be due.
National courts have since applied this case law.
(Last update 07.07.2022)
Is an employee entitled to special leave to visit the doctor during working hours?
None of the provisions of the law provide for special hours or days of leave for medical examinations, except in the case of pregnant women, who are exempted from work in order to attend the prenatal examinations required by law, provided that they are carried out during working hours.
These include the following examinations:
the dental examination which takes place as soon as the pregnant woman is aware of her condition and at the latest before the end of the fifth month of pregnancy;
the first medical examination which takes place before the end of the third month of pregnancy;
the second medical examination which must take place at the latest in the second fortnight of the fourth month of pregnancy;
the third medical examination to be performed during the sixth month of pregnancy;
the fourth medical examination which takes place in the first two weeks of the eighth month;
the fifth and last examination which must take place in the first two weeks of the ninth month of pregnancy;
There are collective agreements that provide for special leave or leave of absence for medical examinations.
Can an employee be dismissed during a leave period?
The answer to this question is yes. During periods of leave, an employee is not protected against dismissal and the employer can therefore dismiss with notice as well as with immediate effect.
According to case law up to 2003, the notice period could only begin to run from the date on which the leave ended. However, since that date, in the event of dismissal during an employee’s ordinary statutory leave, the notice period may begin to run during that leave.
Can an employer force an employee to take outstanding leave during his notice period?
If an employee who has been dismissed with notice is still entitled to days off, an employer cannot force him to take them during the notice period.
The employee is free to decide whether or not to take the leave. Should an employee want to take leave, he submits a request to the employer, who may, however, refuse if the needs of the service or the priorities accorded to other employees do not allow for a favourable response.