Do not forget these employment obligations in December 2020!
The end of the year is getting closer. To make sure you can start the new year without worrying, we will guide you through these last weeks of 2020 by putting your attention on some last to do’s.
Replacement holidays in 2021 need to be posted before 15 December 2020
Every year, there are 10 statutory public holidays on which employees are – in principle – not allowed to work. If these public holidays occur on a Sunday or another day of inactivity within the company, replacement holidays need to be determined. In 2021, Labour Day (May 1), Assumption Day (August 15) and Christmas (December 25) will be on a Saturday or Sunday. In most companies, these three public holidays will thus coincide with a day of inactivity so that companies will have to provide for replacement holidays. These replacement holidays must be communicated to the employees by December 15 at the latest.
These replacement holidays must be determined through a specific cascade system:
- The joint committees can decide on the replacement holidays which are made mandatory by royal decree.
- If no decision is taken by the joint committee, the works council can take a decision.
- If there is no works council, the employer and the trade union delegation can make an agreement.
- If there is no trade union delegation, the employer can make an agreement with the majority of the employees.
- If there is no collective agreement, an agreement between the employer and each individual employee can be made.
- If there is no agreement in any of the above forms, the public holiday will be replaced by the first normal working day within the company after the public holiday.
When an arrangement is made for the entire company, a signed and dated notice must be posted in the company’s premises before December 15. A copy of this notice must be attached to the work regulations and must be sent to the Supervision of Social Legislation of the Federal Public Service Employment, Labour and Social Dialogue (since 2019 this is possible via the online web application).
Obligation to take all annual holidays before the end of the year
Statutory holidays cannot be transferred to the following year. If an employee has not taken all his holidays before the end of the year, he loses the right to those days.
As an employer, you must make every effort to ensure that all your employees can take their statutory holidays in full before the end of the year. Therefore, you should certainly not prevent this. There are administrative and even penal sanctions if you would prevent this.
Due to long-time absence, a suspension of the employment contract or some other form of force majeure, some employees are unable to take their holidays before 31 December. According to the law, as an employer you have to pay them compensation in proportion to their remaining holidays.
Employees who consciously choose not to take all their holidays do not receive holiday pay for the days remaining.
For additional holidays granted at sector or company level, it is up to you to decide whether they are transferable or not.
Obligation to take all working time reduction days before the end of the year
If the weekly working hours in your company are reached on average on an annual basis by the allocation of working time reduction days as a result of reduced working hours, these days must also be taken before the end of the year. Otherwise, the average weekly working time will be exceeded. It is not possible to pay out the working time reduction days or to transfer them to the next year.
- Decide on the three replacement holidays for 2021 before 15 December 2020.
- Notify in writing those employees who currently have annual holidays left and ask them to take them before the end of this year. Please also inform them that these days cannot be carried over to 2021. If they refuse to take those remaining days of annual holiday, it is best if they confirm this to you in writing. In this way you cover yourself against possible sanctions and you will no longer have to pay the holiday pay for the days not taken for the white-collar workers.
- Schedule with the employees the working time reduction days that are still left for 2020 before the end of this year.
Kris De SchutterPartner Attorney at law
Kris De Schutter is partner in and chairman of the Employment & Benefits practice group in Belgium. He has over 18 years all-round experience in collective and individual employment law, with a particular focus on transformation, especially from a holistic view linked to alternative (flexible) remuneration, restructurings and change processes.T: +32 2 700 10 13 E: email@example.com
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