Your employee needs to stay home to take care of their kids. Do you need to pay salary?
In circumstances such as those of the Coronavirus, the suspension of employees' performances is justified by force majeure. In such cases, employers are not obliged to pay the remuneration of employees whose work is suspended.
Two possible alternatives are:
- Parental leave
Parental leave could allow certain employees to receive an allowance at the expense of the Belgian unemployment agency for a maximum period of 4 months, split into periods of 1 month or multiple months. With the consent of the employer, the employee can, since 1 June 2019, split the whole 4 months period in one week periods (= 7 calendar days) or a multiple of one week periods (i.e. up to 16 weeks of full suspension).
A request for parental leave may be made by employees who :
- have children who have not reached the age of 12 years on the date the requested interruption begins (or 21 years of age in the case of a child who suffers from a mental or physical disability); and
- who are bound by a contract of employment with the employer who employs them, for at least 12 months during the period of 15 months preceding the date of notification to the employer.
- Justified absent
Your employee could also justify being absent for compelling reasons for a maximum of 10 days. However, he will not be paid for these days unless otherwise agreed.
Compelling reasons are understood to be “any unforeseeable event, independent of work, which requires the urgent and indispensable intervention of the employee, provided that the execution of the employment contract makes such intervention impossible” (free translation of the legal text). This type of absence could justify some circumstances related to coronavirus (e.g. sickness, hospitalization of a person living under the same roof).
Can an employer refuse an employee’s request for parental leave?
In principle, the employer may not refuse the request for parental leave if the employee meets the conditions. The employer may only, in writing, postpone the exercise of the right to parental leave for justified reasons related to the operation of the company.
The government requires you to close your shop on Saturday. Do you need to pay salary to your employees?
The government has communicated that it will take measures regarding temporary unemployment for economic reasons and force majeure but not yet elaborated on the concrete modalities.
However, based on the communication of the Belgian unemployment agency of 9 March 2020, we can assume that it will be possible for employers to file for temporary unemployment allowances due to force majeure because of the governmental closure of shops on Saturday. In that case, the employee will be entitled to 70% of his or her capped salary (with a maximum of EUR 2.754,76 per month) until 30 June 2020.
The employer who invokes force majeure must report this electronically to the unemployment office responsible for the exploitation seat of the company as soon as possible (this will have to be done by the company itself or its social secretariat). You will have to cite "CORONAVIRUS" as the reason for force majeure. In addition, he must also submit a file by post or email addressed to the temporary unemployment service of the competent unemployment office (for example, for the Antwerp unemployment office: email@example.com) with an explanation showing that unemployment is caused by force majeure caused by the corona virus. Temporary unemployment due to force majeure is recognized within three to four days.
In case of long term difficulties, the employer can submit an application to the Minister of Work to be recognized as a company in difficulty on the basis of unforeseeable circumstances that in the short term will lead to a substantial decrease in turnover, production or the number of orders. In that case, the employer can apply for temporary unemployment for economic reasons to the competent unemployment office.
Loyens & Loeff is happy to assist you with this if required.