Free holiday days during illness?

When do the holiday days of a sick employee expire? The Supreme Court answered these questions in November 2023.

Case

The case was as follows. The employee was employed by DAF. In December 2017, the employee had requested leave to go on holiday from May 13 to June 22, 2018. This leave request was approved on December 14, 2017. At the end of January 2018, the employee became long-term ill and was still not better during his planned holiday. However, he indicated that he still wanted to go on holiday. His company doctor and supervisor agreed with this. The employer then booked off the 29 holiday days, which the employee disagreed with and went to court. The cantonal judge rejected the employee’s request, the court granted the request, after which the Supreme Court was asked to consider the case.

Leave balance

The Supreme Court gives a verdict. The employer was not allowed to book off the holiday days, because, as the Supreme Court considers, when an employee becomes ill after the holiday has been determined and still goes on holiday, these days may only be booked off the holiday balance if the employee expressly and specifically agrees with this. The fact that the employee confirmed to go on holiday after his sick report is not an explicit and targeted consent to book off holiday days according to the Supreme Court. An exception is possible for the taking of statutory holiday days. It can be agreed in writing in advance that booking off can be done with regard to the number of statutory holiday days. This can be in the employment contract, but also the collective labor agreement – if applicable – can contain such an ‘escape’.

Practice

The ruling of the Supreme Court brings with it that employers (more) vigilance is required in the event that an employee becomes ill on holiday or before his determined holiday starts. After all, in both cases, only holiday days can be deducted from the leave balance to the extent that the employee expressly and specifically agrees with this. In the event that the employee becomes ill on holiday, he will often have to submit a declaration of illness from a doctor at the holiday address in accordance with the absenteeism policy applicable in the company. For an employee who reports sick just before holiday, it may happen that there is too short a time frame to still be seen by the company doctor. If the employee then does not agree with the cancellation of his holiday days, the employee can go on holiday without taking holiday days. It is advisable to check your regulations regarding illness again, whereby it can be considered to use the ‘escape’ for statutory holiday days.

Expiration of holiday days

The law prescribes that statutory holiday days expire six months after the end of the year in which they were built up. Statutory holiday days expire after five years. In the aforementioned ruling, the Supreme Court also addresses the question of whether and when holiday days of incapacitated employees expire.

Distinction

The Supreme Court makes a distinction here between incapacitated employees with and without reintegration obligations. An incapacitated employee without reintegration obligations cannot take a holiday according to the Supreme Court. After all, he has no work that he needs to rest from. For this employee, holiday days over that period can therefore not expire if he does not take a holiday. An incapacitated employee who does reintegrate can go on holiday. If he does not take his days, they can indeed expire.

In addition, it has recently been determined in another ruling of the Supreme Court that the employer must ensure that the employee – fit or unfit for work – is able to take his holiday and that he is informed in time if he is about to lose holiday days not taken. If the employer does not comply with this information obligation, the holiday days will not expire.

More information

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This article previously appeared in Rendement.