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Written by:
Bas Hollenberg


Leave Legislation 2012

Leave legislation changes as per January 1, 2012

From 2012 there are new laws and regulations regarding leave. Particularly in regard to sick leave with illness/disability. The expiry date of leave days has also changed.

Three major changes at a glance

1. Accumulating leave
Until now a disabled employee could only accumulate holiday days during the last six months of the period of disability. So someone who is sick say from January 1st to December 31st, accumulates holiday days only in the months of July to December. From January 1st, 2012 this limited accumulation of holiday rights for disabled workers will be abolished.

2. Using leave days
The law regarding the taking of leave during illness will also change. This may be necessary to ensure you do not have to be available for work because of medical check ups, or if rest id needed due to reintegration stresses. Previously there was an agreement between the employer and the employee about how many leave days were deducted. The law now standardises these informal agreements, and proposes that the holidays used are fully written off. Thus complete accumulation (see point 1) also implies fully written off. In this way sick employees are no longer ‘privileged’ compared to healthy workers.

3. Time Limit
To encourage all employees to take regular and timely vacation, in the interest of their health and safety, a new limitation period is included in this amendment. The new time limit for the statutory leave entitlement is six months. If they are not taken within a half year after the previous calendar year then the leave entitlement lapses. However, there is an exception when an employee is reasonably unable to use their minimum leave entitlement. This is up to the courts to decide what is reasonable or not. This does not apply to leave that is accumulated before the amendment was made, and the 5 year period still applies for these cases. For leave which are part of additional benefits the 5 year period still applies. 

According to employment law specialist Jessica Boonekamp of HR services SD Worx there is uncertainty about the exceptions to the new law: ‘The law states that the strict adherence to the time limit of a half a year is not applied if the employee is reasonably unable to take leave. But when is somebody really unable to? The courts must decide what is reasonable. Overall it seems a good amendment, but I would have preferred a clearer standpoint from the legislator. I have a lot of discussions with employers and employees about illness, and this amendment leaves even more room for discussion. Illness remains a difficult topic.’

Leave Administration
Where employers have to especially pay attention is to the leave administration. Jessica Boonekamp: ‘You have three kinds of leave days between 2012 and 2017. The days accumulated before 2012 (expiry period a maximum of 5 years), statutory minimum number of leave days (expiry period 6 months), and additional benefit leave days (5 years). We will develop a tool in the existing employee administration system that conforms to the new law. But it can not hurt to make a call and consult with the person in the organisation responsible for controlling this.’ 

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