As part of the measures taken by the government to contain the spread of COVID-19, many parents have had to telework while having to look after their children at the same time. Faced with this situation, the government has passed a Special Powers Decree which temporarily provides for corona parental leave for working parents who are currently facing difficulties in combining private and professional life, allowing them to reduce their working hours. Special Powers Decree no. 23 of 13 May 2020 was published on 14 May 2020 in the Belgian State Gazette.
What is this temporary system?
Ordinary parental leave, as we know it today, allows an employee to suspend his/her employment contract in full or in part, and receive an allowance paid by the National Office for Employment (ONEM/RVA), in order to take care of his/her child, as long as the child has not reached the age of 12 at the start of the leave, or 21 if the child is disabled.
Corona parental leave enables parents of at least one child who has not reached the age of 12 at the start of the leave, or 21 years in the case of a disabled child (note, however, that this last age condition does not apply in some specific cases) to reduce their working time by one-fifth or a half for a temporary period between 1 May until 30 June 2020 (with the possibility of an extension).
To allow the use of this system in the special circumstances linked to COVID-19, the government has provided for a specific regime with a certain number of derogations from the ordinary parental leave regime.
No deduction from the ordinary parental leave credit
Corona parental leave is not deducted from ordinary parental leave credit. Therefore, this leave will not be taken into account for the maximum duration of ordinary parental leave. In other words, an employee who meets the eligibility conditions for corona parental leave is entitled to additional leave besides ordinary parental leave.
Written request of the employee
In order to allow for parental leave to be granted more quickly than what is provided for ordinary parental leave, Special Powers Decree no. 23 provides that the employee must notify his/her employer in writing (certain formalities are required) of his/her wish to use corona parental leave at least three working days prior to the start of the leave, unless both parties agree to a shorter notification period.
Employee seniority condition
The Special Powers Decree also foresees that this corona parental leave is possible for all parents of children described above who have been bound for at least one month by an employment contract to their employer. In addition to full-time employees, parental leave can also be taken in the form of a reduction in working time by a half, by a part-time employee whose working arrangements constitute at least three-quarters of a full-time occupation at the start of the corona parental leave.
The allowance paid by the ONEM/RVA is also higher (up to 25%) than the allowance granted for ordinary parental leave.
Conditions for taking leave
This leave can be taken in a flexible manner, either in a continuous period until the end date scheduled for the measure (30 June 2020 if no extension), or in one or more (consecutive or not) periods of one month and/or a week.
Conversion or suspension of ordinary leave into corona leave
Employees who currently benefit from ordinary parental leave in the form of a one-fifth-time or part-time career break may also, by mutual agreement with their employer, convert their current leave into corona parental leave (e.g. convert part-time ordinary parental leave into part-time corona parental leave). Another possibility offered to employees who have interrupted their career or who have reduced their working time within the framework of ordinary parental leave is a temporarily agreed (with the employer) suspension of the ordinary parental leave which is replaced by corona parental leave (e.g., full-time ordinary into half-time corona or one-tenth ordinary into one-fifth or even half-time corona). The interest obviously lies in the fact that corona parental leave is not taken into account for the ordinary parental leave credit described above.
Employer’s consent required
Finally, a notable difference exists compared to ordinary parental leave, for which, in principle (subject to some exceptions), the agreement of the employer is not required; for corona parental leave, the employer must agree to this leave.
Special protection against dismissal
For ordinary parental leave, there is special protection against dismissal. Indeed, during a certain protection period (this protection begins on the day of the written notification and ends a few months after the end of the parental leave), the employer cannot unilaterally terminate the employment contract except for serious cause or in case of sufficient reason. The sufficient reason must be a reason that would be recognised as such by a judge, and whose nature and origin are not linked to the suspension of the employment contract or to the reduction of the working time due to the exercise of parental leave.
Special Powers Decree no. 23 states that ‘corona parental leave is exercised in accordance with the conditions and rules relating to parental leave insofar as this decree does not derogate from these rules’. On the basis of this provision, the special protection against dismissal would apply to corona parental leave. Note that this special protection against dismissal does not mean that there is a prohibition on dismissal. An employer may still dismiss an employee during the protection period linked to the corona parental leave for a reason unrelated to the reduction in working time.
You might receive requests for corona parental leave during the period from 1 May to 30 June 2020 (or even later if this measure is extended). This temporary measure provides for a certain number of derogations from the ordinary parental leave scheme in order to deal with the exceptional situation that we are facing. In the event of the dismissal of an employee who has used or is using this corona parental leave scheme, do not forget that there is special protection against dismissal.