Belgium – Increased protection for employees undergoing fertility treatment

What’s new?

The Belgian Parliament has passed an Act (“the Act”) which amends the protection offered to employees who are absent from work due to undergoing fertility treatment. The new provisions are intended to increase the protection against dismissal and discrimination. Whilst the exact timing is not confirmed, this legislation will come into effect ten days after its publication in the Belgian State Gazette.

What are the key provisions?

  1. Specific protection against dismissal – Employees will be protected against dismissal for a period of two months, commencing from when their employer has been provided with a medical certificate mentioning their fertility treatment. Should the fertility treatment extend beyond two months, the employee will need to issue their employer with a new medical certificate. Employees will have the right to leave during this period and may only be dismissed for lawful reasons unrelated to their absence due to fertility treatment. The employer would have the burden of proof in the case of a dismissal.
  2. Protection against discrimination – The Act amends the Gender Anti-Discrimination Act, inserting “absence due to fertility treatments” as a protected ground. The legislation stipulates that an employee should not be adversely affected by any absence due to fertility treatment, and as such, will be entitled to return to the same job (and if not possible, to an equivalent / similar job) once they return to work. Employees will also be entitled to any improved working conditions to which they would have acquired had they not been absent from work.

What are the consequences of non-compliance?

If an employee is dismissed due to absence for fertility treatment, the employer will be liable to pay compensation of six months’ salary. If an employee is discriminated against due to fertility treatment, they will be entitled to fixed compensation of six months’ salary. These compensation amounts can be cumulated, however, if an employee is dismissed after the two-month protection period, they will only be able to claim compensation for being discriminated against.

So, what should employers do now?

Employers should familiarise themselves with the new legislation and the protections afforded to employees who are undergoing fertility treatment to ensure they are compliant when it comes into force. This includes updating internal policies and template contracts in consideration of these changes. If you need any support with this, or would like any further information, please get in touch with a member of the MDR ONE team.

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