No doctor's note required on the first day of illness

Until recently, an employer could always require an employee on sick leave to justify their absence with a doctor’s note. This could be done either by explicitly asking the employee to provide one or by including the requirement automatically in a collective bargaining agreement or the company’s employment regulations. A significant—yet limited—exception to this long-standing rule has recently been introduced.

The new rule is simple. Starting now, employees have the option to be absent from work for one day due to illness without having to submit a doctor’s note to their employer. The rule applies to a single “isolated” sick day or to the first day of a longer period of illness. Employees may invoke this exception up to three times per year—in other words, for up to three “isolated” sick days or, alternatively, for the first day of three separate extended periods of illness. The rule therefore does not allow an employee to invoke the exception on three consecutive days. The employee may invoke the new rule only on that first day. An employee who wishes to invoke the exception must provide the address where they are staying on that day of sick leave, if it differs from their usual place of residence known to the employer.

This new option is not entirely without obligations. Even when making use of this option, the employee remains obligated to immediately inform their employer that they are (or will be) absent due to illness. Failing to provide any notice on the first day of absence due to illness therefore remains illegal. Furthermore, an employer who has doubts about the authenticity of the illness may still send an occupational physician to examine the employee. It is precisely to facilitate this examination that an employee invoking the exception must provide the employer with his or her current address, if it differs from the usual place of residence known to the employer.

The new rule took effect on Monday, November 28, 2022, and applies to all employers and employees subject to Belgian labor law. Finally, it is worth noting that the exception also applies if the employer has explicitly stipulated in the applicable employment regulations that the employee is always required to justify his or her absence due to illness. However, employers with fewer than 50 employees retain the option to deviate from the new rule. The deviation must be explicitly stated so that it is clear the employer intends to deviate from the new statutory exception. This therefore requires an amendment to the employment regulations or the conclusion of a new collective bargaining agreement at the company level. ** Crauwels Advocaten can assist you with all your questions regarding incapacity for work. **