Pluies torrentielles / Neige: Conséquences pour employeurs et employés

Force majeure and compelling grounds are legal concepts that provide for employees’ absences due to unavoidable or unforeseeable events beyond their control. Lately these have been of interest due to the floods in November and the snow in December.
What are the consequences, for employees and employers, of being absent from work or finding oneself unable to work due to bad weather?

For employees

1.-
For employees faced with waterlogged cellars, flooded rooms or snowed-in houses, there are two legal concepts available to warrant their absence. These are force majeure1 and compelling grounds2 ("dwingende redenen" (nl) – "congé pour raisons impérieuses" (fr)). The Employment Act of 3 July 1978 (hereinafter referred to as the "Employment Act") provides for both force majeure (article 26 Employment Act) and compelling grounds (article 30bis Employment Act).

2.-
Firstly, employees caught in a flash flood and not able to get to work due to said flood or due to sudden unpredicted heavy snowfall could invoke force majeure to warrant their absence. The four conditions in which force majeure is applicable are:

1) the event hindering the employee must be unavoidable and unforeseeable;
2) the event must be independent of the will of the parties;
3) the employment agreement must be entirely impossible to perform;
4) the situation must be temporary.

Secondly, the other legal concept employees could invoke to warrant their absence from work, is that of compelling grounds ("dwingende redenen" (nl) – "congé pour raisons impérieuses" (fr)). Serious risk to personal belongings is recognized as a compelling ground, warranting an employee’s absence.

3.-
Only in some cases will the Employment Act provide for the entitlement to remuneration (i.e. article 27 Employment Act). The remunerative implications for both legal concepts are thus different.

If force majeure is invoked by the employee and accepted, the cause of the employee’s absence will be seen to originate in an event that occurred independently of the will of the employee, who on the way to work orupon leaving for work was fit to work, resulting in the employee being entitled to a day’s remuneration. So force majeure may be invoked for sudden events, such as an unpredicted severe amount of snow or torrential rain that causes flash flooding. The employee will be justifiably absent and not suffer financially.

However, if force majeure is rejected the employee will not be entitled to remuneration or temporary unemployment benefits. For example if an employee invokes force majeure in the event of his inability to get to work due to snow, it will probably be rejected if the evening beforehand the weather forecast predicted snow. It will be up to the employee to prove that everything within his power was done to get to work (i.e. took the train, carpooled, etc); if the employee can prove that the alternative measures taken were in vain, then he will be entitled to remuneration for the day of absence.

The days of absence based on compelling grounds, are in principle never remunerated. That being said, more favourable provisions can be provided for in the joint committee or within the company. Furthermore, an employee may only request 10 days of absence per year based on compelling grounds.

4.-
In conclusion, the only way employees can be absolutely certain of not suffering any loss in remuneration is by applying to have the day, or days, of absence converted into holiday.

For employers

1.-
Employers who experience flooding in company buildings, or access blockages due to waterlogging or excessive snow may invoke a state of temporary unemployment for the blue collar workers’ days of unavailability for work, if these circumstances make it impossible for the blue collar workers to work.

Nevertheless, this is not a given right. The manager of the local National Employment Office has the discretionary right to decide whether or not the waterlogging will be classified as a force majeure, resulting in the allocation of temporary unemployment benefits to absent blue-collar workers.

The National Employment Office has notified that it will consider November’s torrential rain and the ensuing floods as circumstances fulfilling the criteria to validate the allocation benefits to absent blue-collar employees; only the future will tell if this will also be the case for the heavy snow that fell atthe beginning of December. Upon validation by the National Employment Office the employer will not have to bear the cost of the days of unavailability for work of the blue-collar workers.

2.-
For white-collar workers the legal concept of temporary unemployment does not exist. If force majeure is applicable, the white-collar worker will be entitled to guaranteed remuneration for the day of his absence and the employer will have to meet this cost. If force majeure is rejected, the day of absence will not be remunerated.

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1 As provided for in article 26 Employment Act and defined in a Court of Cassation Ruling dated 9 October 1986 (Cass., 9 October 1986, R.W. 1987-88, 778): Force majeure can only derive from an event independent of a person’s will, which could neither be predicted nor prevented.
2 As defined by article 2, §2 of CBA nr. 45 of 19 December 1989 on the introduction of leave on compelling grounds: every event that is unforeseen and unconnected to work that requires urgent and imperative action on the part of the employee and this in so far as the execution of the employment agreement entails the impossibility to intervene.