Incapacity for work: No medical certificate required for the first day of absence 

 

The decision was taken at the Council of Ministers and should be voted by the legislative institutions shortly: workers will no longer be required to submit a medical certificate to their employer to cover their first day of absence due to illness, up to a maximum of 3 days per calendar year. However, the legislator has provided for the possibility of an exemption for companies with fewer than 50 workers. 

 

Current rules: is the submission of a medical certificate compulsory in any case? 

 

Up to now, although the worker is obliged to notify his employer immediately of his incapacity for work, the law does not oblige workers whose employment contract is suspended due to illness to spontaneously provide a medical certificate to cover their absence. However, it is possible to provide for this in a collective labour agreement or in the work regulations, which is most often the case. It should also be noted that, even in the absence of specific provisions, the worker is obliged to submit a certificate drawn up by his or her doctor when requested by the employer. 

These provisions were applicable regardless of the duration of the worker's incapacity. The political authorities intended to bring about change in this respect, justifying this measure in particular by reducing the workload of general practitioners thanks to this exemption. 

 

No medical certificate for the first day, 3 days per calender year

From now on, for the first day of incapacity for work, the worker will no longer have to present a medical certificate. The exemption can be used for a single day's absence or for the first day of a longer absence. If the incapacity lasts more than one day, a medical certificate must be submitted in accordance with the above rules, either in application of a collective agreement or the work regulations, or at the employer's request. 

The employee may make use of this exemption for 3 days per calendar year. They may also choose to go to their doctor and obtain a certificate to justify their absence, even if it is only for one day, and thus retain this possibility for another absence later in the year. 

Furthermore, the legislator has introduced an obligation for the worker making use of this exemption who must, in this case, immediately inform his employer of the address at which he will be staying during this first day of absence. 

 

Derogation foreseen for small enterprises 

In its bill, the legislator has nevertheless provided for the possibility of derogation for companies employing less than 50 workers (as on 1 January of the calendar year in question), which may opt to apply the rules as they were up to now and set aside the newly introduced exemption from the medical certificate. 

However, this exemption will not be automatic and will have to be provided for in a collective labour agreement or in the work regulations. Employers who wish to avoid this new regime will therefore potentially have to amend their work regulations, subject to compliance with the procedure for amending work regulations as provided for in the relevant legal provisions. 

It is therefore essential for the employers concerned to take a position on the subject in order to be able to take the steps that may be required to implement their decision.  Indeed, the modification of the work regulations in a company where no works council is set up implies that the draft of the new regulations should be made available to the employees so that they can make any observations. This could therefore be a topic for discussion in some companies.

 

What can RSM do for you? 

 

RSM can assist and advise you in the drafting of your amendment to the work regulations, in accordance with the applicable legal provisions. In addition, this may also be an opportunity to review other points of the work regulations with respect to developments in your company and/or in the legislation, in which RSM can also assist you according to your needs.

 

If you have any questions regarding the above topics, please do not hesitate to contact the RSM Belgium InterPay team ([email protected]).