Protection against dismissal

What is the consequence of compliance with these two obligations for the employee?

Where employees have fulfilled their obligations regarding notification (informing employers of illness on the first day and submitting a medical certificate within three days at the latest), the law protects them against dismissal.

These two conditions together trigger the mechanism for protection against dismissal.

However, this protection is limited in time: it is valid for a maximum period of 26 weeks from the first day of the illness.

There are several exceptions to an employer being prevented from dismissing a sick employee.

In the following cases, the employer may terminate an employment contract:

  • the employee has not submitted the certificate within three days
  • the employee is ill because of a crime or offence in which he or she voluntarily participated
  • an employee who has not previously notified his employer of the illness, gives the medical certificate to the employer after receiving the letter of dismissal or the invitation to the preliminary interview (exception for the case of urgent hospitalization)
  • the period of protection against dismissal has expired
  • the law of 7 August 2015 specified that legally withholding remuneration by the employer ceases for the same reasons for rejection of sick pay by CNS. CNS may take such a decision when the medical officer of the Social Security Medical Examination establishes an insured person’s capacity, as well as with another reason for terminating the payment of sick pay (failure of the insured person to appear at a Social Security Medical Examination without good cause, for example). The decision is final unless the insured person objects in writing within 40 days of the notification. According to the ITM, an employer who has been informed by the CNS that the employee has been declared fit to return to work from a certain date, is obliged to stop paying an employee’s salary during the salary continuation period, even though the employee holds new sickness certificates extending beyond that date. If an employee’s appeal results in the recognition of his incapacity for work, the right to full salary continuation and other benefits resulting from the employment contract is restored. Employers will be informed by the CNS. The employer will have to pay the salaries due under the salary continuation programme retroactively. An employee whose incapacity for work is confirmed shall not suffer any loss of pay.

What happens if the employer was not informed of the employee's illness?

Failure to meet either obligation constitutes gross misconduct and warrants immediate dismissal.

However, the solution is different if the employee has informed his employer on the first day of his absence, but fails to submit the medical certificate within three days.

In this case, failure to submit the certificate within the time limit constitutes negligence on the part of the employee, which may result in dismissal with notice.

In the event that the employee does not notify his employer on the first day of his absence, but gives him a medical certificate on the second day, case law considers that this omission alone does not justify dismissal, even with notice, in the absence of other elements related to the employee’s conduct or fitness.

What happens if the employee is urgently hospitalized?

Presentation of a certificate of incapacity for work within eight days of the hospitalization renders the letter of dismissal / invitation to the preliminary interview null and void.

Must the employer continue to pay a sick employee?

An employee who is absent due to illness must receive the same pay as if he or she had come to work. Employees shall not suffer any prejudice because they are absent for a reason beyond their control.

The period corresponding to an absence due to illness of the employee is to be considered as a period of actual work, in the same way as the absence due to maternity leave.

Sick leave shall entitle the employee to annual recreation leave.

This right to continued remuneration ends in light of a decision by the National Health Fund (CNS) to refuse coverage. This decision is therefore binding on the employer.

The CNS may take such a decision when the medical officer of the Social Security Medical Examination (CMSS) determines the employee’s capacity to work, as when there exists another reason for terminating the payment of sickness benefit (e.g. the insured’s failure to appear at a CMSS meeting without good reason).

The employer will be notified of this refusal decision by the CNS and be ordered to stop paying the sick employee.

This decision to refuse coverage becomes final if no written objection is received by the insured within 40 days of notification.

An appeal is possible before the steering committee of the National Health Fund (CNS) within 40 days of notification, then before the social security courts (in first instance before the Arbitration Board for the Social Security Administration and the High Council of the Social Security Administrations in appeal).

The CNS shall inform the employer in the event of an appeal by the employee against the decision to refuse continued payment of salary.

If the employee’s appeal results in the recognition of his incapacity to work, the right to full continuation of salary and other benefits resulting from the employment contract is restored. The employer will be informed by CNS.

The employer shall pay the wages due for continued remuneration retroactively. The employee whose incapacity to work is confirmed shall not suffer any loss of pay.

Are employees protected against dismissal if they fall ill after having been summoned to the preliminary interview?

No. Presenting a certificate of incapacity for work after receipt of a summons to a preliminary interview does not affect the validity of the dismissal procedure initiated.

Once the summons to the preliminary interview has been received, an employee cannot avoid the dismissal procedure by going on sick leave after receiving it.

Are employees protected against dismissal if they fall ill after a layoff?

Yes. An employee who becomes ill after a layoff but before termination is protected against termination.

In this case an employer must wait until the end of the illness before pronouncing the dismissal. The prohibition of dismissal entails the correlative suspension of the 8-day period for pronouncing the dismissal following the layoff.

What can employees who are dismissed during the protection period do?

The dismissal, whether with notice or with immediate effect, of an employee who is unable to work and who has duly fulfilled his obligation to inform an employer is unfair.

The employee may file a petition with the Labour Tribunal for damages.

Can repeated absences due to illness be grounds for dismissal?

Frequent and/or prolonged absences due to illness may constitute grounds for the employer to terminate the employment contract. These absences give rise to the presumption of a serious disruption in the operation of the company, while the employer can no longer count on a sufficiently regular collaboration from his employee.

The employer is therefore entitled to dismiss an employee who is frequently ill with notice, either on the return of the employee’s sick leave or at the end of the 26-week protection period, on the grounds of serious disorganisation of the business due to the employee’s prolonged or repeated absenteeism.

Continuation of pay

For how long is an employee entitled to continued remuneration from an employer?

An employee who is unable to work is entitled to his full salary and other benefits of his employment contract until the end of the calendar month in which the 77th day of work incapacity occurs during a reference period of 18 successive calendar months. A new entitlement to continuation of salary shall only arise at the beginning of the month following the month in which this limit is no longer achieved.

Upon completion of the 77-day period employers must continue to pay the salary until the end of the current month. If the 77 days expire on the last day of the month, the employer has fulfilled his obligations and compensation for any subsequent periods of incapacity to work is paid by the National Health Fund (CNS). If, on the other hand, the 77 days are reached on the first day of a month, the responsibility for compensation does not pass to CNS until the first day of the following month, thus extending the period of continued remuneration by between 27 days (for February) and 30 days (for months with 31 days).

If the period of salary continuance used is less than 77 days, the burden reverts to the employer at the beginning of the following month at the earliest.

The role of the Employers’ Mutual Fund is to reimburse employers up to 80%, and in some cases 100%, of the cost of the above-mentioned principle of continued remuneration.

What is meant by continuation of pay?

An 8 April 2018 law clarified what is meant by “continuation of sick employees’ pay by their employer.”

Employees who know their working hours at least until the end of the calendar month covering the incapacity for work at the time of the onset of an illness

Such employees shall be paid as if they had worked according to the pre-established plan during the days of illness, i.e. the basic salary for the month in question plus all current bonuses and supplements as well as any increases to which employees would have been entitled if they had worked in accordance with their work schedule for the period of incapacity.

Employees who do not know their working hours at least until the end of the calendar month covering the incapacity for work at the time of the onset of an illness

Such employee shall be paid a daily allowance corresponding to the average daily wage of the last 6 months immediately preceding the onset of illness.

Employees who are paid on a performance or by task basis, or whose wages are fixed as a percentage, by turnover or subject to marked variations

The average salary for the 12 months preceding the illness is used as the basis for calculating the daily allowance to be paid.

Calculation of the daily allowance to be paid by the employer

Employees with less than 6 or even 12 months of service

The reference period for averaging is reduced to the actual period a person occupies a job.

If the 6 or 12 months immediately preceding the occurrence of the illness include periods of leave, sick leave, short-time working, unemployment due to bad weather, or accidental or involuntary technical unemployment, these periods shall be exempt.

Average daily wage

The average daily wage is based on the employee’s gross monthly wage.

It is obtained by multiplying the gross hourly wage, which is calculated by dividing the gross monthly wage by 173 hours or by the normal monthly working hours resulting from the applicable collective agreement or employment contract, by the number of hours worked per day.

Gross monthly salary X hours worked per day / 173

Taking into account of legal or conventional salary increases

If, during the reference period provided for the calculation of the sickness benefit payable by the employer or during the period of illness, there are definitive wage increases resulting from the law, the agreement or the individual employment contract, these shall be taken into account for each month in the calculation of the sickness benefit.

Exclusion of certain elements

Non-periodic benefits, bonuses and performance bonuses, incidental expenses incurred in the course of work and overtime shall not be taken into account.

What about employee who receive commissions?

An employment contract must provide for a fixed monthly basic salary (at least the social minimum wage), but may also provide for remuneration in the form of commissions.

These commissions are an element of salary. They must be taken into account when calculating the compensation for continued remuneration in the event of incapacity for work, for example by calculating an average of the previous months.