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Storms and floods: what do you need to know as an employer?

19 July 2021 Nele Mertens Employers

Extreme weather such as fierce forest fires and hailstorms upset the holidays of many Belgians. For holidaymakers hit by severe weather, starting start the journey home in good time is by no means easy. What if your employee is unable to return in time to resume work?

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Option 1: leave for compelling reasons

A first route is leave for compelling reasons (sometimes also called family leave or social leave).

What is leave for compelling reasons?

Your employee has the right to be absent from work for compelling reasons.

A compelling reason is an unforeseeable event unrelated to work that requires the urgent and necessary intervention of your employee, making them temporarily unable to perform their employment contract.

What counts as a compelling reason?

Serious material damage to the employee’s belongings due to a fire or natural disaster is defined by the legislation itself as a compelling reason (if the other conditions are met). However, employers and employees can also consider other events as a compelling reason by mutual agreement.

How many days of leave for compelling reasons can your employee take?

Every calendar year, your employee may not take more than 10 working days of leave for compelling reasons; although though there may be more favourable rules at sector or company level. The maximum of 10 working days applies to both your full-time and part-time employees. Therefore, for part-time employees, there is no longer a prorated cap.

Is compassionate leave paid or unpaid?

Compulsory leave is, in principle, unpaid. However, other agreements can be made on this, for instance at the sector or company level or with your employee.

What obligations does your employee have?

Your employee who is absent for a compelling reason must notify you in advance or, if this is not possible, as soon as possible.

Your employee may use the leave for compelling reasons only for the purpose for which it is authorised. You can ask your employee to prove the compelling reason with appropriate documents or other evidence.

Option 2: leave days or catch-up rest

Does your employee have any leave days left? If so, you can see if your employee can use extra leave days to cover his or her longer absence. The same applies if your employee still has catch-up rest . Additionally, extralegal leave might offer a solution.

Option 3: suspension on grounds of force majeure

If your employee is temporarily unable to perform his employment contract due to force majeure, then force majeure temporarily suspends the performance of the employment contract. During the suspension, your employee is absent from work without entitlement to pay. Under certain conditions, however, there may be entitlement to a temporary unemployment benefit from the RVA.

Your employee in a situation such as this should notify you as soon as possible. If your employee fails to do so, you could consider his or her absence to be unauthorised.

When is force majeure?

Force majeure exists when the following three conditions are met:

  • the event must not be due to the employer or employee;
  • the event must be beyond any normal expectation;
  • the event must constitute an insurmountable obstacle for the employer and employee to continue to perform the employment contract.

If your employee is completely stuck at their holiday destination for a time due to severe weather, the first two conditions will normally be met. Whether the third condition is fulfilled is a question of fact. The key question here is whether the severe weather poses an unforeseeable and insurmountable obstacle for your employee resuming work on time, or whether there are still alternatives for the employee to get home anyway, even if it is more difficult or expensive.

Option 4: occasional teleworking

If your employee is temporarily prevented by force majeure from performing his or her employment contract at the normal workplace, but can technically and practically work remotely, then occasional telework because of force majeure.

Your employee must request this in advance, giving reasons. You are not obliged to accede to this request: if you refuse, bring the reasons for this refusal to your employee’s attention in writing as soon as possible. At company level, a collective agreement or working regulations may lay down rules on occasional teleworking: so be sure to check these too.

Keep up to date on social-judicial legislation

Follow the socio-legal updates for employers and/or dive into Trefzeker for an up-to-date overview of regulations.

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Written by Nele Mertens

Juridisch adviseur

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