Key details
Prior to the introduction of the protections against dismissal and discrimination for employees undergoing infertility treatment or engaged in MAR, the Labor Act provided only pregnant female employees with such protections.
Protection against dismissal
Male and female employees undergoing infertility treatment or MAR may no longer be dismissed by their employer for reasons related to the time off they need to take for their treatments. The protection against dismissal covers all infertility treatments including in vitro fertilization, evaluation of sperm quality, egg donation, hormonal treatments, artificial insemination, etc.
This protection against dismissal applies for two months starting from the time the employer is informed of the treatment through a medical certificate. Employees may provide their employer with another medical certificate to open an additional two-month protection period if needed for their infertility treatment plan. The new legislation does not limit the number of medical certificates that an employee may provide per year.
Employers will still be allowed to dismiss an employee undergoing infertility treatment or MAR for reasons other than their related absences which may include economic restructuring, performance issues, etc. In such cases, employers will be required to prove that the reasons of the dismissal are not related to the infertility treatment. In addition, the employee has the right to request that those reasons be delivered in writing.
Penalties: Employers who fail to prove that the dismissal was unrelated to infertility treatment or MAR will be required to pay the employee a lump sum protection indemnity equal to six months’ gross salary.
Protection against discrimination
The legislation extends the protection against discrimination to not only include MAR but also all infertility treatments.
Under this new protection, employers are prohibited from taking any adverse actions while employees are absent for infertility treatments. Employees have a right to return to the same or a similar position after their absence and must be able to continue benefiting from all their acquired rights during their absence. In addition, employees are entitled to benefit from any improvements in working conditions that they would have been entitled to during their absence for treatment.
Penalties: Employees can claim compensation for discrimination if the employer fails to comply with this new protection. The employer will then be liable for damages (if that can be proved by the employee) or/and a lump sum protection indemnity equal to six months’ gross salary. Compensation for discrimination may be combined with other indemnities including the dismissal lump sum indemnity as well as other termination indemnities as applicable.
Next steps
Employers should update their internal procedures and policies to reflect the new change. It is important to note that employers are not mandated to pay the employee’s salary while they are absent for infertility treatment or MAR. Employees may take unpaid or paid leave as available.
In collaboration with:
Claeys & Engels
