COVID-19 - Impact of temporary unemployment on employees on sick leave
10 Apr 2020
In the past few weeks, a large number of Belgian companies have placed (part of) their employees on temporary unemployment due to force majeure, following the extension of this possibility adopted by the federal government on 23 March 2020. Given the impact of the current crisis on your business, you may decide (or have decided) to do the same. However, what about your employees who were on sick leave before you made that decision? Are they entitled to a guaranteed salary during the period of sick leave that also corresponds to temporary unemployment, or do they receive direct allowances from their health insurance fund?
This question led to different answers lately: it was clear that no guaranteed salary was due when sick leave occurred during a period of temporary unemployment that started previously, however the opposite situation, when the employee is on sick leave before being put on temporary unemployment, led to uncertainty. We requested a written confirmation of the interpretation of the FPS Employment, Labour and Social Dialogue (hereafter: FPS Employment) which further clarifies the outcome of this question.
Note that this interpretation is given in the specific context of COVID-19 so that we cannot exclude that, post-crisis, the FPS Employment would adopt another position than the one below (e.g. in a situation of temporary unemployment due to economic reasons for white-collar workers).
The first cause for suspension of the employment contract has priority
In principle, the illness of an employee interrupts the employment contract. During this suspension, the employer is bound to pay the employee a guaranteed salary for a certain period:
- for white-collar workers, the salary is guaranteed for the first 30 days of incapacity for work;
- blue-collar workers receive a guaranteed salary during the first 7 days of incapacity and are then entitled to a percentage of their salary paid by the employer and supplemented by the health insurance fund, until the 30th day of continuous incapacity.
Temporary unemployment also interrupts the obligations arising from the employment contract. Although the Act of 3 July 1978 on employment contracts does not determine which cause of suspension is to be prioritised, practice and doctrine consider it suitable to retain the cause of suspension that is the first to occur in chronological order.
The FPS Employment has confirmed this approach, and therefore considers that, when the employee has been placed on temporary unemployment due to force majeure when he was previously on sick leave, the first cause of suspension should prevail.
The right to a guaranteed salary exists only if the incapacity results in a loss of salary.
An employee on sick leave is then in principle entitled to a guaranteed salary at the expense of his employer.
However, Article 56 of the Act of 3 July 1978 on employment contracts provides, with specific reference to sick leave, that a blue-collar worker is entitled to his normal remuneration only for those days of normal activity for which he would have been entitled to remuneration if he had not been unable to work. No reference is made to white-collar workers in this provision.
Yet, a blue-collar worker who has been placed on temporary unemployment due to force majeure is not entitled to any salary during this period. Indeed, even if he had not been ill, the employment contract is anyway suspended during the period of temporary unemployment.
As a result, blue-collar workers are not entitled to a guaranteed salary for the period of temporary unemployment due to force majeure. It should also be noted that the blue-collar worker is likewise not entitled to any unemployment benefits, because he or she is not fit for work. Therefore, the health insurance fund will intervene during this period.
Application by analogy to white-collar workers
Article 56 of the Act of 3 July 1978 on employment contracts does not contain a similar provision for white-collar workers, and case law is divided on whether or not to apply the same rule to them.
The FPS Employment confirmed that they consider it to be fair and in accordance with the meaning of the law to apply the same provisions by analogy to employees as well: as a result, white-collar workers are not entitled to a guaranteed salary for the period of temporary unemployment due to force majeure.
The FPS Employment refers to the ratio legis of Article 56, which is to guarantee the wage that would have been received by the employee if he or she had not been ill.
Conclusion
It should therefore be concluded from the above developments that an employee who is placed on temporary unemployment due to force majeure when he was previously on sick leave will receive his guaranteed salary until the day preceding the first day of temporary unemployment. Afterwards, the employee may, in principle, receive an allowance paid by his health insurance fund during the rest of the period of sick leave. If the employee is no longer on sick leave but is still temporarily unemployed, he will then be entitled to benefits paid by the NEO on the basis of his temporary unemployment due to force majeure.
Finally, it is essential to note that the FPS Employment states in its opinion that it is an abuse of right for an employer to systematically put sick employees on temporary unemployment. Indeed, the employer cannot resort to temporary unemployment solely in order to evade payment of wages.
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