Season’s question! Does the employer have to pay a guaranteed salary to a worker who had a ski accident?

15 Mar 2019

Some of the workers in your company decided to take time off to go skiing. Unfortunately, these holidays do not end equally well for everyone: one of them falls on the slopes and is unable to work. Do you have to pay him a guaranteed salary?

General principle

In principle, a blue-collar or white-collar worker who has an accident in his private life is entitled to a replacement income paid by his employer during a certain period of time, referred to as guaranteed salary. During this period, the execution of the employment contract is suspended.

Conditions

The conditions for benefiting from this guaranteed income differ depending on whether the worker is a blue collar or a white collar employee.

White-collar employees who have been hired for an unlimited period of time, for a limited period of at least 3 months or for a defined task whose performance normally requires an occupation of at least 3 months will be entitled to a guaranteed salary. Employees hired for a limited period of less than 3 months or for a defined task whose performance normally requires an occupation of less than 3 months must be employed by the company for one month without interruption in order to be entitled to a guaranteed salary following incapacity for work.

Blue-collar workers have to be employed by the company for one month without interruption in order to be entitled to a guaranteed salary. If blue-collar workers do not have one month's seniority, the employer does not have to grant any guaranteed remuneration.

Amounts and periods

During the first 30 days of incapacity, the employer will bear up to 100% of the normal gross salary for white-collar workers who have been hired for an indefinite period or if the latter have been hired for a limited period of at least 3 months or for a defined task whose performance normally requires an occupation of at least 3 months.

An employee who has been hired for a limited period of less than 3 months or for a defined task whose performance normally requires an occupation of less than 3 months shall retain the right to remuneration only under the same conditions as the ones applicable to blue-collar workers.

The employer will bear the cost of remuneration for blue-collar workers as follows:

  • from the 1st to the 7th calendar day: 100% of the gross hourly wage;
  • from the 8th to the 14th calendar day: 85.88% of the gross hourly wage;
  • from the 15th to the 30th calendar day: 25.88% of the gross hourly wage limited to a monthly amount of gross pay subject to a ceiling, and 85.88% of the part above this ceiling. During this last period, the guaranteed salary is supplemented by the health insurance fund for as long as his state of health still does not allow the worker to work.

The employer’s right to check incapacity for work

The employer has the right to call on the services of an examining doctor to check the incapacity of a worker, including in the case of a ski accident. The right to check the incapacity is acquired from the moment the worker claims his incapacity for work, even before he provides any medical certificate, and throughout the period of incapacity.

The examining doctor verifies the reality of the incapacity for work, the probable duration of the incapacity for work and, where appropriate, other medical data that have an impact on the payment of the guaranteed salary (e.g. the cause of the incapacity for work: an accident in private life or an accident during the practice of a sport).

If the examining doctor concludes, in contradiction with the conclusions of the worker's attending doctor, that the worker is able to work, the employer will not have to pay the guaranteed salary. However, a worker in such a situation could still have recourse to arbitration. In this case, the employer will only escape payment of the guaranteed salary if the arbitrator agrees with the examining doctor.

Exceptions – application to ski accidents?

Two exceptions to the obligation to pay a guaranteed salary may apply in the case of ski accidents.

No guaranteed salary is due for certain sports accidents. Indeed, if the worker has been injured in physical exercise during a sports competition or exhibition for which the organizer receives an entry fee and for which participants receive compensation in any form whatsoever, the worker will not be entitled to the guaranteed salary. This means that a purely recreational sporting activity such as skiing is not one of such excluded "sports accidents". Consequently, the employer must in principle pay the guaranteed salary in such a case.

In addition, if the employer can prove that the incapacity for work is a consequence of a serious mistake by the employee, the employer must not pay a guaranteed wage. According to case law, serious misconduct relates to a situation where the worker worsens his situation. Thus, the guaranteed salary would not be payable if for instance the worker deliberately skied off the slopes or practised his favourite sport under the influence of alcohol.

Conclusion

In conclusion, except in the event of a sports accident in the context of a competition or a serious mistake on the part of the worker, the employer will have to pay a guaranteed salary to a blue-collar or white-collar worker who has had a ski accident. It is therefore recommended to provide for the obligation of the employee to provide a medical certificate attesting to his incapacity for work (be it in the employment contract, in the work regulations or in any other documentation), or at least to request such a document to be provided when such a situation occurs.

No guaranteed salary will have to be paid where the employee would not provide a valid medical certificate. On the basis of the medical certificate provided, the employer may want to check the incapacity for work (and the circumstances of the ski accident) via the examining doctor. Even though it might not be easy to verify the exact circumstances of a ski fall, the examining doctor has the possibility to request additional information such as the medical file created at the place of the accident.

 

Contact us

Bart Elias

Bart Elias

Partner, PwC Legal BV/SRL

Tel: +32 473 91 06 02

Pascale Moreau

Pascale Moreau

Partner, PwC Legal BV/SRL

Tel: +32 479 90 02 76

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