When one of your employees becomes ill, it is essential to be aware of everyone's rights and obligations to avoid misunderstandings and ensure that the situation is managed in accordance with the law. As an employer, you may have a number of questions about the procedures to follow, the time limits to be observed and the steps you can take to check the validity of a sick leave.
In this article, we'll be answering the 12 most frequently asked questions that employers have when an employee announces that he or she is unable to work. From the notification of sick leave to the medical certificate, not forgetting the employee's obligations during his or her absence or in the event of sickness during leave, we offer you a clear and practical insight into these crucial points.
1. What is the deadline for my employee to notify me that he/she is ill?
Employees must inform their employer of their incapacity to work ‘immediately’, i.e. as soon as they become aware of it, without any delay, except in cases of force majeure. For example, if the employee becomes unfit for work on a Friday evening, he or she must notify the employer on the same day, even if the absence is only for the following Monday. Delaying notification until Monday morning constitutes misconduct. This is important because the period of guaranteed pay begins on the first day of incapacity, even if that day does not coincide with an actual working day.
2. If my employee has to undergo a foreseeable hospitalisation, can he/she wait until the day of the hospitalisation to inform me of his/her absence?
In our understanding, the employee cannot wait until the day of his/her hospitalisation to inform his/her employer. Although the law does not explicitly specify this case, the employee is expected to inform the employer sufficiently in advance in the event of foreseeable and non-urgent intervention, so as to allow the employer to make the necessary arrangements. Failure to do so could constitute a breach of contract, insofar as the employee must perform the contract in good faith.
3. Should my employee inform me of his/her absence by telephone, e-mail or any other means? Can I impose a method of communication?
As the law is not specific on this subject, it is generally accepted that the employee may use any means to inform his or her employer of his or her absence, whether by telephone, text message, e-mail or other means, bearing in mind that the method of communication chosen must allow the employer to receive the information quickly and to understand that he or she is unable to work.
However, the employer may specify in the work rules the means of communication to be used to ensure proper receipt (e.g. e-mail or telephone only, excluding Whatsapp or Teams), otherwise the warning may be deemed not to have been received.
4. Can I request a medical certificate from the first day of absence?
In theory, an employer may require an employee to provide a medical certificate from the first day of absence, if this is provided for in the employment regulations (or in a collective labour agreement). If nothing is specified in the work regulations (or in a CLA), the employer may request a certificate, but must be able to prove this request. The statutory deadline for submitting the certificate is 2 working days from the date of incapacity.
Since the end of 2022, however, the law has allowed employees not to provide a certificate for the first day of incapacity up to three times a year. In companies employing fewer than 50 employees, it is nevertheless possible to derogate from this rule and maintain the obligation to provide a medical certificate from the first day of incapacity, on condition that this is expressly specified in the employment regulations.
Since January 2024, in the event of incapacity during annual holidays, the employee must immediately inform his or her employer of his or her place of residence if he or she is not at home, and provide a medical certificate specifying the incapacity and its probable duration, even without an express request from the employer.
5. What information must a medical certificate contain to be valid? What should I do if the certificate is incomplete?
The medical certificate must contain three mandatory items:
(1) the incapacity for work
(2) the probable duration of the incapacity, and
(3) the possibility for the employee to go elsewhere for a medical check-up.
In our experience, a collective agreement, work regulations or employment contract may require additional information, such as the identity of the employee, the date on which the incapacity began, and whether it is new or a relapse.
6. Does my employee have to explain to me the precise reason for his/her illness or just inform me that he/she is unable to work?
In theory, the employee is not obliged to provide details of the exact nature of his or her illness. He or she must simply inform the employer of his or her inability to work and provide a medical certificate (where this is required). Medical confidentiality protects the nature of the condition. However, the employer may request information on the circumstances of the incapacity (for example, whether it is the result of an accident or a relapse) in order to exercise certain rights or obligations, particularly in terms of insurance or liability.
7. Do I have the right to contact my employee while he or she is on sick leave?
Yes, you can contact your employee while he/she is off sick for work-related reasons, but this must be done with caution. It is not forbidden to contact him/her, but the contact must respect his/her state of health and not constitute pressure to return to work or perform tasks incompatible with his/her incapacity, at the risk of being interpreted as harassment. The way in which you contact him/her depends on your relationship with him/her and the nature of his/her illness, if known.
8. How can I check whether my employee's sick leave is justified?
To check whether your employee's sick leave is justified, you can request a medical examination. You have the right to have the incapacity to work checked by a medical examiner, even if the employee is not obliged to provide a medical certificate because, for example, it is the first day of incapacity.
The employee, for his or her part, must cooperate by receiving the doctor sent by the employer and allowing him or herself to be examined by him or her, if the doctor comes to the employee's home. The employee must therefore inform his or her employer of the address where the examination is to be carried out, and notify him or her of any changes. If the employee is able to travel, he or she may also be asked to go to the examining doctor's practice.
If an employee misses an appointment with the examining doctor without a legitimate reason, he or she may lose the right to guaranteed pay for the entire period of incapacity for work. The employer may apply this sanction if the employee fails to facilitate the examination, for example by not turning up or refusing to see the doctor. However, if the employee proves that he or she was unable to undergo the examination due to force majeure, the sanction will not apply.
9. Does my employee have to stay at home during working hours if he or she is on sick leave?
The employee does not have to stay at home during working hours if the certificate states that he or she is allowed to go out. However, work regulations (or a CLA) may require the employee to remain at home for a maximum of 4 consecutive hours between 7 am and 8 pm for a visit from the examining doctor.
10. Can my employee follow a training course, go on a holiday or carry out another activity while on sick leave?
An employee on sick leave is, in theory, prohibited from carrying out any activity, whether paid or unpaid, because he or she is presumed to be unable to work and receives a guaranteed salary. However, this prohibition must be qualified if the activity carried out is not related to her specific incapacity or if it does not delay her recovery. Activities such as training or travelling could be acceptable if they do not impede recovery or contradict the nature of the disability.
However, certain activities may constitute serious misconduct, such as those involving an activity that competes with that of salaried work, or that clearly appear to contradict the declared incapacity. Caution is advised, as labour courts are becoming increasingly reluctant to recognise that engaging in another activity during a period of incapacity for work constitutes serious misconduct.
11. What happens if my employee becomes ill while on holiday? What are their rights and obligations?
From 1 January 2024, if an employee becomes ill during their annual holiday, a number of rules apply:
(1) The employee must immediately inform his or her employer of his or her incapacity, indicating his or her address of residence if different from his or her usual place of residence, and provide a medical certificate within the usual time limit, even for a single day of incapacity.
(2) Holidays during which the employee is ill may be postponed and taken at a later date. The employee must, however, submit a request to his/her employer.
(3) The employee is entitled to guaranteed pay for days of incapacity while on holiday.
12. What should I do if my employee wants to return to work before the end of his or her sick leave because he or she is feeling better?
The employee may return to work, and the employer may not object to the employee returning to work before the end of the period covered by the medical certificate. The employer cannot demand an additional ‘certificate of fitness’. However, it is advisable to ask the employee to confirm in writing that he or she is returning to work of his or her own free will.
By way of exception, the employer may refuse to allow the employee to return to work if this constitutes a clear and present danger to the employee or his or her colleagues.
Antoine Castadot (Advocaat-Vennoot, YELAW) en Louise Gillain (Advocaat, YELAW)