On 15 July 2021, Belgium published the law of 27 June 2021 "extending bereavement leave in the event of the death of a partner or child and introducing flexibility in taking bereavement leave" (“the law”) in the Official Gazette.
This law introduces substantial changes to bereavement leave. While the new measures were intended to apply to deaths occurring from 25 July 2021, Federal Minister of Economy and Labour Pierre-Yves Dermagne recently announced that he would " anticipate " the application of the law to deaths resulting from recent storms.
The following is a summary of the main provisions of this law.
1. Extension of the number of days
Workers now have the right to be absent from work for ten days (no longer three) in the event of the death of their spouse, one of their children or one of their spouse's children, while maintaining their normal pay.
This right to paid leave is also extended to the death of the worker's cohabiting partner, a child of the cohabiting partner or a foster child in the context of long-term foster care.
2. Flexibility
The law provides that of the ten days:
three days are to be chosen by the worker within the period starting on the day of death and ending on the day of the funeral; and
seven additional days are to be chosen by the worker within a period of one year from the day of death.
However, for more flexibility, at the request of the worker and with the agreement of the employer, the parties may derogate from the two periods during which these days must be taken.
3. Impact on the guaranteed salary
If the worker becomes unable to work immediately after taking additional days of bereavement leave due to the death of the worker's spouse, cohabiting partner, or child, the period of guaranteed salary (due in case of sick leave) may be reduced.
Indeed, the additional days of bereavement leave (up to a maximum of seven days) are deducted from the guaranteed pay period, provided that they are consecutive to all or one of the three existing days of bereavement leave taken under the law.
Example 1: A white-collar employee takes ten days of bereavement leave following the death of his child. Immediately after the ten days, the employee becomes unable to work for 25 days.
Under the new law, the employee will therefore be entitled to three days paid bereavement leave, seven additional days paid bereavement leave and 23 days guaranteed pay (30 days guaranteed pay, seven days' bereavement leave). From the 24th day (not the 31st) onwards, the employee will no longer be covered by the guaranteed salary.
Example 2: A white-collar employee takes ten days of bereavement leave following the death of his child. After these ten days, he goes back to work for a few days and later becomes unable to work. Under the new law, the seven additional days of bereavement leave will not be deducted from the period of guaranteed salary. In this case, the work incapacity did not occur immediately after the additional bereavement leave was taken. Therefore, he can receive 30 days of guaranteed salary.
Finally, there is no imputation if the additional days of bereavement leave are granted under a conventional scheme, such as a sectoral collective labour agreement.
4. Entry into force
The law is scheduled to come into force on the tenth day following its publication in the Belgian Official Gazette of 15 July 2021 (i.e. on 25 July 2021). The new measures are intended to apply to deaths occurring from that date.
However, following the floods that hit the country, Federal Minister of the Economy and Labour Dermagne decided to adopt a "broad interpretation of the law" in order to include deaths occurring before 25 July 2021.
Furthermore, according to media reports, in order not to discriminate against other bereaved persons, Minister Dermagne extended this possibility to all workers who have suffered the death of a child or spouse in the last twelve months.
Gaël Chuffart - Partner, Brussels
Yousra El Alaoui - Junior Associate, Brussels
