Non-guilty prevented to work

Notion

A non-culpable inability to work exists when the employee is temporarily unable to perform his or her work through no fault of his or her own. When this incapacity is inherent to the employee's personality, the employer is obliged under certain conditions to pay his salary for a limited period of time.

Salary

The employee is in principle entitled to his or her salary during an incapacity to work. However, this obligation is only valid for a limited period of time, which depends mainly on the employee's years of service.

For reasons of cost control, it is sometimes in the employer's interest to take out loss of earnings insurance for his employees. However, it must comply with numerous conditions and formal requirements. Otherwise, the employer will remain liable to pay the employee's salary in case of illness.

Subjective/objective impediment

In order to be entitled to salary, the employee's non-culpable impediment must be inherent to his or her personality, i.e. subjective. Purely objective reasons, affecting a large number of people, such as certain impediments to work due to a pandemic or a natural disaster, are not concerned. Certain situations may be borderline, such as when an employee is quarantined during an epidemic. Will he/she be entitled to his/her salary in such a situation?

Short-term contract

The employee must demonstrate a certain level of loyalty to the employer before the employer is required to pay wages in the event of a non-culpable impediment to work. When the employment is purely temporary, the employee will not be entitled to his or her salary in the event of illness.

On-call work is particularly sensitive in this regard. Despite the precarious nature of this type of work and the fact that schedules can vary from week to week, the employer is obliged to pay the employee's salary in the event of incapacity to work.

The employer must be careful because the on-call worker will not necessarily be covered by accident insurance, especially when the number of hours worked is low. An incapacity to work due to an accident will therefore often be charged to the employer.

Inability to work

Flu, broken leg... Non-culpable inability to work is usually temporary. When, as a result of an accident, the employee is permanently unable to work, the employer will only have to pay his salary under certain conditions.

Pregnancy

Pregnancy can cause increased fatigue in the pregnant employee, nausea and back pain. She can, on simple notice, be absent from work. However, she will only be entitled to her salary if she is truly unable to work.

Sick child

When a child is sick, it is common for schools and daycares to refuse to keep the child. Not everyone is fortunate enough to have a babysitter on call.

The employee is entitled to paid leave for the care of his/her sick child, under certain conditions and for a limited period of time. The employee must find a childcare solution as soon as possible.

Leave to care for family members

When an employee's child is seriously ill or injured, he or she will be entitled to paid leave from the loss of earnings insurance as of July 1, 2021. When the employee has to take care of a family member who has health problems, the employer will have to grant him a paid leave, limited in time.

Medical certificate

In case of illness or accident, it is customary for the employee to provide a medical certificate to prove his or her inability to work.

Retroactive medical certificate, incapacity to work just after a dismissal or following a refusal to grant holidays, an employee complaining of back pain caught playing tennis, an employee with the flu who publishes photos of himself on the ski slopes... Circumstances may lead the employer to doubt the validity of the medical certificate. In view of the heavy financial consequences that an incapacity to work may entail, the employer should immediately call in a medical consultant.

Activity

An employee who is ill is still bound by his duty of loyalty. They must make every effort to recover as soon as possible. Certain activities are prohibited and may result in a warning or immediate termination if they are likely to prevent or delay recovery.

Vacations

Difficulty in adapting to local food or an accident during a sporting activity, the employee is sometimes unable to work during his holidays. If this incapacity is of a certain intensity and duration, the employee can ask for his holiday days back. The question of the language of the medical certificate is delicate.

Reduction of vacation entitlement

When an employee is absent from work for a certain period of time, he or she accumulates less work fatigue. The law allows the employer to reduce the vacation entitlement, especially if the employee is unable to work.

Probationary Period

The purpose of the probationary period is for the employer and employee to determine if they are mutually suitable. This purpose may be compromised when the employee is prevented from working or is absent for a shorter or longer period of time. The probationary period may, in some cases, be extended.

Sabbatical leave

During a sabbatical leave, the employer does not have to pay the employee's salary, even if the employee becomes unable to work. Once the sabbatical has lasted for a certain period of time, the employee will no longer be covered by the various insurance policies. The employee should take precautions before leaving!

Termination at an inopportune juncture

When an employee is unable to work due to illness, accident, etc., it is more difficult, if not impossible, to find a new job. The law provides protection against termination at an inopportune juncture for a certain period of time.

Some situations deserve special attention. This is the case when the inability to work is only partial or when the employee's illness is insignificant or lasts only a few days.

Retroactive medical certificate

It is not uncommon for an employee to submit a retroactive medical certificate in the hope of having his or her termination rescinded or his or her leave period extended. In some situations, the employer may have well-founded doubts about the validity of the medical certificate and may challenge its validity. 

What happens when an employee receives a letter of termination and rushes to the doctor to go on sick leave? Is an employee who discovers that he or she has leukemia when he or she is terminated months after the end of the employment relationship protected against termination at an inopportune juncture?

Inability exclusive to the workplace

In a mobbing or sexual harassment situation, the employee may no longer be able to work at his or her job because of the psychological pressures at the workplace.

However, the employee may be able to find a new job in another company in which he or she would not suffer an impairment of personality. The question of whether an employer can dismiss an employee in such a situation is a delicate one. Such a dismissal could well be qualified as wrongful.

Termination with immediate effect

During the period of protection against termination at an inopportune juncture, termination with immediate effect for just cause is always possible. However, if the immediate dismissal is unjustified, the employer may be required to pay substantial compensation.

Work certificate

Work incapacities are, in principle, personal and sensitive data of the employee. The employer is obliged to keep it confidential.

However, when the non-culpable impediments to work accumulate or are prolonged, the question arises as to whether such an incapacity can be mentioned on the work certificate. When drawing up an employment certificate, the employer is often torn between his obligation to tell the truth and the protection of his employee's economic future. This is a delicate situation.