A non-culpable impediment to work exists when the employee is temporarily unable to perform his or her job through no fault of his or her own. When this inability is inherent to the employee's personality, the employer is obliged to pay the employee's salary for a limited period of time.
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 or her employees. However, the insurance must comply with a number of conditions. Otherwise, the employer will remain liable to pay the employee's salary in case of illness.
Faulty impediment to work
The employer's obligation to pay wages during an incapacity to work presupposes that the incapacity to work is not attributable to the employee's fault.
In principle, fault on the part of the employee is only accepted by the courts in a restrictive manner. Can the employer withhold an employee's salary if he or she suffers an accident as a result of playing a dangerous sport? What happens when an employee serves in the military, even though she is not required to do so?
The question of whether, in the context of the Covid-19 pandemic, an employee's refusal to be vaccinated constitutes misconduct is delicate. Will the employer have to pay the employee's salary if he or she tests positive for Covid-19?
To be entitled to wages, the employee's non-culpable impediment must be inherent in his or her personality. Purely objective reasons affecting a large number of people, such as a pandemic or natural disaster, are not covered. Certain situations may be borderline, for example if an employee is quarantined during an epidemic or if his or her car won't start because of the cold.
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. Where the employment is purely temporary, the employee will not be entitled to his or her wages in the event of illness.
On-call work is particularly sensitive in this regard. The mere fact that the employee does not have fixed hours does not mean that the employer has no obligation to pay wages in the event of illness. Since the employee will often not be covered by accident insurance, the bill may be high.
Permanent inability to work
Flu, broken leg, etc. Non-culpable inability to work is usually temporary. When, following an accident, the employee is permanently unable to work, the employer will only have to pay his salary under certain conditions.
Pregnancy can cause increased fatigue, nausea and back pain for a pregnant employee. She may, upon notice, be absent from work. However, she will only be entitled to her salary if she is truly unable to work.
When a child is sick, it is common for schools and daycares to refuse to take the child. Not everyone is fortunate enough to have a babysitter on call.
The employee is entitled to paid leave for the care of their sick child, under certain conditions. The employee will need to find childcare as soon as possible.
When the employee's child is seriously ill or injured, he/she will be entitled to paid leave from the loss of earnings insurance as of July 1st, 2021. When the employee has to take care of a family member who has health problems, the employer will have to grant him/her a paid leave, limited in time.
In case of illness or accident, it is customary for the employee to provide a medical certificate to prove his/her inability to work.
Retroactive medical certificate, incapacity to work just after a dismissal, an employee complaining of back pain caught playing tennis... Circumstances may lead the employer to doubt the medical certificate. In view of the heavy financial consequences that an inability to work may entail, the employer will have to call in a medical consultant.
An employee who is ill is bound by his or her 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 dismissal.
Difficulty in adapting to local food or an accident during a sporting activity, the employee may become unable to work during his holidays. If this incapacity is of a certain intensity, the employee can ask for his holiday days back. The question of the language of the medical certificate is delicate.
Reduction of holiday entitlement
The purpose of holiday is to allow the employee to rest. In the event of a long-term incapacity to work, the employee's fatigue is less important. The employer may, under certain conditions, reduce the employee's holiday entitlement.
The purpose of the probationary period is for the employer and employee to determine whether they are mutually suitable. This purpose may be compromised when the employee is absent for a longer or shorter period of time. The probationary period may, in some cases, be extended.
During the 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, it is more difficult, if not impossible, for him or her 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.
It is not uncommon for an employee to submit a retroactive medical certificate in the hope of having his or her dismissal cancelled or his or her leave period extended. In some situations, the employer may have reasonable doubts about the validity of the medical certificate.
What happens when an employee receives a termination notice and rushes to the doctor's office to call in sick? Is an employee who discovers that he or she has leukemia when he or she is dismissed months after the end of the employment relationship protected from termination at an inopportune juncture?
Impediment limited to the position
In the case of mobbing or sexual harassment, the employee may no longer be able to work at his or her place of employment. However, the employee may be fully capable of finding a new job. The question of whether the employer can terminate the employee is a difficult one. Such a termination could well be considered wrongful.
Termination with immediate effect
During this period of protection against termination at an inopportune juncture, termination with immediate effect for just cause is always possible. However, if the termination with immediate effect is unjustified, the employer may be required to pay substantial compensation.
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 accumulate, they can represent a significant part of the duration of the employment relationship. When drawing up the employment certificate, the employer is often torn between his obligation to tell the truth and the protection of his employee's economic future. This situation is delicate.