New protection for employees undergoing infertility treatment

On 18 April 2024, a new Act to better protect employees undergoing infertility treatment was published in the Belgian State Gazette. The new Act aims to protect these employees against (i) dismissal, and (ii) discrimination. It therefore updates two well-known Belgian employment law Acts: the Labour Act of 16 March 1971 and the Gender Act of 10 May 2007.
The new Act enters into force on 28 April 2024.

I. Modification of the Labour Act of 16 March 1971: a new protection against dismissal

A. The law up to now: a strict interpretation of “pregnancy”

Pregnant employees enjoy a specific protection against dismissal under Article 40 of the Labour Act of 16 March 1971. They are protected against dismissal by their employer from the moment the employer is informed of their pregnancy, except if the dismissal happens for reasons that are unrelated to the employee’s pregnancy (such as reorganisation, behaviour issues, etc.).

However, this protection against dismissal only applies to pregnant employees, and so has excluded employees who are undergoing fertility treatments and medically-assisted reproduction (MAR) procedures.

The question has been raised whether the material scope of this protection against dismissal could be extended, particularly to employees undergoing IVF (“in vitro fertilization”) treatment. The vast majority of the Belgian case-law (following the European Court of Justice’s infamous Mayr ruling) has reasoned as follows: the Labour Act of 16 March 1971’s protection only applies when the fertilized eggs are transferred into the employee’s uterus; this means that the protection’s scope does not extend to all prior stages of the IVF treatment, such as the prior medical consultations or the fertilization process.

Therefore, only pregnancy has been able to trigger the protection mechanism’s application, excluding treatments enabling employees to get pregnant. Moreover, no protection was foreseen for male employees undergoing fertility treatment.

B. New protection against dismissal for infertility treatment and MAR

The new Act introduces a new protection against dismissal under the Labour Act of 16 March 1971. The new protection’s main features can be summarised as follows:

• Material scope. Employees undergoing infertility treatment or MAR will enjoy a specific protection against dismissal. The protection’s scope of application is very broad and covers not only IVF treatments, artificial insemination, but also all treatments related to an employee’s fertility, such as the medical evaluation of sperm quality, egg donation procedures, hormonal treatments, etc.
  
  The new Act also refers to “a female or male employee”, which implies that the protection’s scope extends to male employees undergoing infertility treatment.

• Informing the employer. To be protected, the employee must provide the employer with a medical certificate informing the employer of the infertility treatment.

• Start and end date of the protection. The protection starts on the day the employer is informed of the infertility treatment by means of the medical certificate and ends two months later. If the treatment lasts longer than two months, then the employee will have to provide the employer with another medical certificate that will open a new 2-month protection period (the new Act does not limit the total number of medical certificates that may be provided).

• Protection mechanism. The employer will not be able to dismiss an employee undergoing an infertility treatment or an MAR procedure for reasons related to the employee’s absences due to such treatment. However, the employer will still be able to dismiss the employee for other reasons unrelated to the infertility treatment or MAR (such as  reorganisation, behavioural issues, performance issues unrelated to those absences, etc.).
  
  The employer will have to prove that these reasons for dismissal are not related to the infertility treatments and/or MAR procedure. The employee will have the option of requesting the reasons for the dismissal in writing.
  
  Please note that the employer is not obliged to pay the employee’s salary during the absence for infertility treatment or MAR.

• Penalty. If the employer fails to prove that the reasons for the dismissal are not related to the infertility treatment or MAR, then the employee will be entitled to a lump-sum protection indemnity equal to 6 months’ salary.

II. Modification of the Gender Act of 10 May 2007: a new protection against discrimination

The new Act has also amended the Gender Act of 10 May 2007 by officially introducing infertility treatment and MAR as protected criteria.

This does not cause a ‘major change’ since existing case-law, including the European Court of Justice’s Mayr ruling mentioned above, already considers that the Gender Act’s scope will be broad enough to include certain situations, such as IVF procedures.

This means that employees will be granted protection against any adverse measures concerning infertility treatment or MAR, including:

• The right to return to the same or an equivalent job at the end of the infertility treatment or MAR;
• The right to benefit from any improvement in working conditions to which he/she would have been entitled during his/her absence for infertility treatment or MAR;
• The right to benefit from all rights acquired during his/her absence for infertility treatment or MAR.

The specific system of burden of proof included in the Gender Act applies, which means that as soon as the employee is able to invoke factual elements from which it can be presumed that discrimination based on infertility treatment or MAR has taken place then the employer will have to prove that the adverse action taken has been unrelated to these protected criteria.

In the absence of such proof, the employer will be liable to pay either a lump sum equal to 6 months’ gross salary, or compensation covering the actual damage suffered by the employee.

III. Takeaway

Employers should now be more careful than ever if one of their employees is undergoing infertility treatment or a MAR procedure.

Therefore, it is important for employers to:

• Maintain clear and transparent communication with employees so that employers are aware when their employees are undergoing such procedures.
• Consider entering into a contractual agreement with employees undergoing infertility treatments or MAR procedures regarding their remuneration (such as paid/unpaid leave, adaptation of the work schedule, etc.).
• Ensure not changing the working conditions of the employees undergoing such treatments (such as their function, salary, working time, etc.) and ensure that such employees benefit from any improvement in working conditions to which they would have been entitled during their absence.
• Be aware that each time that they receive a medical certificate from the employee, a new 2-month protection period against dismissal will start.

The new Act does not provide for any anti-cumulation rules, and so it is possible that the protection indemnities in the Labour Act and the Gender Act may be accumulated. Employers dismissing a protected employee undergoing infertility treatment or a MAR procedure could therefore be financially liable for up to 12 months’ salary.

Written by

• Esther Soetens

  Counsel

• Alexandre Calain

  Associate