Sick notes: here's what to watch out for as an employer

Short-term absenteeism, where employees are absent for less than a week by reason of sickness, appears to be falling and is approximately 0.2% less compared to 2022. Since late 2022, employees are allowed to be absent from work for one day by reason of sickness three times a year without having to provide a sick note. However, companies with fewer than 50 employees may derogate from this rule. Outside of this exemption scheme, the rule remains: those who are sick must enter a sick note if so required under a collective bargaining agreement or by employee handbook, or if you ask for a sick note as an employer. Exactly which details is a sick note  required to state? First of all, the sick note must be signed by a doctor, stating the doctor's identity details: his/her surname, first name and RIZIV number.

• the fact that your employee is incapacitated (unfit) for work;
• the expected duration of his/her incapacity for work;
• whether or not your employee is allowed to leave the house to undergo a medical examination to check his/her incapacity for work.

Additional information in the sick note may be required under a collective bargaining agreement or your employee handbook, such as:

• the start date of his/her incapacity for work,
• the type of incapacity for work (illness, accident in private life, occupational accident, etc.),
• whether this is a first medical certificate, a renewal or a new case of incapacity for work.

• disclosures that come under doctor-patient confidentiality, such as what illness your employee has;
• The sick note must be written in a language you can understand.

If the mandatory information is not specified in the sick note, you are free to disregard the sick note as an employer. In that case, your employee is in breach of regulations, and you may deny him/her guaranteed pay until he/she provides you with a valid sick note. Speak to your employee about this, and explain his/her obligations.

In addition, you are free to impose one of the sanctions on your employee set out in your employee handbook. For repeated offences, you may even consider dismissal for cause. However, be careful when sacking your employee for due cause: for one thing, you need to make sure beforehand that you have sufficient evidence of the wrongdoing you wish to invoke as due cause. You also need to be able to prove that your employee's wrongdoing makes it definitively impossible with immediate effect to continue the employer-employee relationship.

In that case, the sick note does not corroborate your employee's incapacity for work, and there is no entitlement to guaranteed pay. This is a case of unauthorised absence from work by your employee. You can take action against this with a sanction from the employee handbook, or even by dismissing the employee for due cause. Incidentally, forgery of records is a criminal offence against which you can take further action. Just make sure you have sufficient evidence, and seek legal advice.

If in doubt as to the authenticity of the signature on the sick note, you can contact the doctor, who can confirm or deny the authenticity of the sick note without revealing other health details of the patient.

The basic rule is that your employee has to submit the sick note within two working days from the day his/her incapacity starts. Saturday also counts as a working day.

The following nuances apply to this:

• Through a collective bargaining agreement or your employee handbook, you can extend the deadline for submitting the sick note. In turn, imposing a shorter deadline than the legal deadline on your employees is not allowed;
• There may be instances of force majeure where it is not possible for your employee to meet the deadline. In such cases, your employee should not be adversely affected by the late submission of the sick note;
• Three times per calendar year, your employee can claim the sick note exemption for the first day of a sickness period. SMEs however are free to expressly rule out such an exemption.

Is your employee late with his/her sick note? In that case you can deny your employee the right to guaranteed pay until you get a valid sick note.

If your employee reports in sick during his/her holidays, he/she is also required to provide you with a sick note. There is no exemption for the first day of incapacity for work (see above).

To report sickness during holidays, your employee can use a specific of sickness note template prepared by the government.

If specific information is required under a collective bargaining agreement or your employee handbook (see above), your employee must provide such information.

The consequence of sickness during holidays, since 2024, is that the overlapping days are not considered holidays, and may therefore be taken at a later date.