New protection against dismissal for employees undergoing infertility treatment
29 Apr 2024
A recent act of 24 March 2024, published in the Belgian Official Gazette of 18 April 2024 establishes increased protection for individuals undergoing infertility treatment or engaged in medically assisted reproduction. This act, which comes into effect on 28 April 2024, acknowledges the specific challenges faced by employees, both men and women, dealing with heavy diagnoses and treatments, which may result in recurring absences from the workplace due to medical consultations, examinations, and interventions.
The necessity of these absences, crucial for treatments, can impact the organisation of work within companies, which is why the act aims to ensure that these employees do not face unfavourable treatment due to their involvement in medically assisted fertility processes. To achieve this, it introduces a protection against dismissal for employees who are absent as a result of undergoing such treatment and expands on the already existing protection against discrimination in the workplace for these men and women.
It’s important to point out, however, that this act doesn't entail any kind of additional entitlement to paid leave for the employees in question. This means that absence arrangements for these employees will have to fit within the company’s existing systems of (paid) leave, or – if the employee is unable to work due to medical reasons as a result of undergoing treatment – the regulations on incapacity for work and illness.
Protection against dismissal
The first mechanism introduced by the new act concerns a specific protection against dismissal for employees who are absent from work because they’re undergoing treatments for infertility or medically assisted reproduction programs.
In order to benefit from protection against dismissal, the employee must inform the employer of their absence by presenting a medical certificate attesting to the need for medical examinations and treatments related to infertility or medically assisted reproduction. The protection period begins as soon as the employer is informed through the medical certificate and ends two months after this notification. During this period of protection against dismissal, the employer can only terminate the employment relationship of the protected employee for reasons completely unrelated to their absence due to infertility treatment or medically assisted reproduction, with the burden of proof for these unrelated reasons resting entirely with the employer. If the employer violates this protection against dismissal, the employee is entitled to a lump-sum compensation equivalent to six months’ gross remuneration. This compensation can be accumulated with other amounts due as a result of the termination, as well as the compensation for discrimination protection, as detailed further below.
Extension of protection against discrimination
This act also introduces a specific protection against discrimination for employees who’re absent from work because they’re undergoing infertility treatment or medically assisted reproduction, building on the general protection against discrimination based on medically assisted reproduction that’s been in force since 19 January 2023.
More specifically, this new protection means that the employee in question is entitled to return to their position after their absence for treatment, and if the original position is no longer available, the employer must offer an equivalent or similar position. Additionally, the employee is entitled to any improvements in working conditions they may have been entitled to during their absence, as well as the maintenance of their acquired or accruing rights.
In case of non-compliance with these guarantees, the employee can claim compensation for discrimination. This compensation can be based on actual damages, to be proven by the employee, or on a flat-rate compensation generally equivalent to six months’ gross remuneration. This compensation can be combined with other protection allowances, such as a dismissal protection indemnity and other termination indemnities if applicable.
Key takeaways
Starting on 28 April 2024, employees undergoing infertility treatments and medically assisted reproduction will benefit from an additional set of protection mechanisms, which companies will have to take into account in their workforce policies and processes.
If you have any questions regarding this legislative change, don't hesitate to reach out; we'd love to hear from you and provide further clarification.
