Sickness during a period of vacation

The European Court comes to your rescue, although it does not seem to be that easy

The European Court of Justice (ECJ) has rendered a judgment this week, stating that the days of sickness during a vacation cannot be considered as vacation days. In other words: you have two weeks of vacation, however you are sick during one of those weeks (or incapacitated) for one reason or another. Thus, according to the verdict of ECJ, you have taken only one week of vacation and you have the right to an additional week of vacation.

At first sight, this seems fair since a vacation is intended to give the employee the opportunity to rest and recover. In case you are sick, there is no question of resting. However, is this righteous in every circumstance?

At first sight, it even seems simple, but is that in fact so?

This judgment of the ECJ immediately gave rise in the Belgian news media to all sorts of comments of various offices, social partners, etc. since the judgment requires a modification of the Belgian legislation. The Belgian employers organizations excelled at this by putting the emphasis on possible abuses by the employees, which might surface because of the new legislation. Personally, I believe that these reactions do injustice to our employees in general. Nonetheless, the foregoing does not prevent that the judgment of the ECJ raises several questions.

The current Belgian legislation stipulates that the event that first occurred (sickness or vacation), keeps the upper hand: therefore, if you have planned your vacation, for example, from 15 until 31 July and you are sick from 14 until 20 July, the days of sickness during the planned vacation do not count as vacation days; In that scenario, you have the right to additional vacation days; On the other hand, if you are sick, given the aforementioned example, from 16 July until 22 July, than the sickness days will be considered as vacation days and your week of vacation, during which you were sick, will be ruined.

The Belgian legislation will have to be modified by virtue of the judgment of the ECJ since according to this judgment, the days of sickness in both the aforementioned examples cannot be taken into account as vacation days.

Based on the argument (vacation equals rest), it seems rather justified, however is that the case?

Example: M. Jansens wants to use his vacation to boost his physical condition and he decides to take his bike for a daily tour trough the Belgian Ardennes. Unfortunately, he heavily falls down and breaks his right wrist and his right shoulder blade. As a result of his vacation activities, he is sick and incapacitated. Is in those circumstances a direct application of the judgment of the ECJ justified? We do not think so.

Is the application of the principle, as determined by the ECJ, simple? Although it might appear so, is that the case in reality?

Example: M. Jansens has decided to visit Mexico during his vacation. Unfortunately he is not careful and drinks tap water. Result? ….. Turista! During five days, M. Jansens lays extremely ill in bed in his hotel room, suffering from diarrhea, nauseousness, etc. Hence, M. Jansens is sick as a consequence of the way he has chosen to spend his vacation. Moreover, M. Jansens is obligated to render evidence to his employer of the fact that he was sick during those five days in Mexico instead of enjoying the Mexican sun on the beach. How can/must M. Jansens deliver proof of his sickness? Is a medical certificate of a random gentleman, who pretends to be a doctor and hands out such certificates (in Spanish) sufficient? Or can the employer demand that the employee provides a certificate of a Mexican doctor, who is recognized by the Belgian embassy as such (as is required by other regulations, as of example, the regulation concerning labour permits)?

It would be advised that the Belgian legislator takes its time to consult and reflect on this matter before it blindly modifies the Belgian legislation according to the judgment of the ECJ.

26 June 2012

Marcel Houben - marcel.houben@peeters-law.be

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