The Act of 30 October 2022 containing various provisions concerning the inability to work was published Friday in the Belgian State Gazette and will enter into force on 28 November 2022.
This Act amends Article 31 of the Employment Contracts Act, resulting in the fact that employees no longer have to submit a sick note for the first day of incapacity for work up to three times per calendar year. Companies employing fewer than 50 employees on 1 January of the calendar year in question can deviate from this rule via a collective labour agreement or the work rules.
In addition, the procedure to terminate an employment contract due to medical force majeure will be amended. The procedure will be completely separated from going through a reintegration track.
Finally, this Act also amends the rules concerning the guaranteed income of a progressive return to work.
Abolition of sick note for the first day of incapacity for work
The exemption only applies in companies where a collective bargaining agreement or the work rules require its employees to submit a sick note justifying their period of incapacity. The employee using this exemption will not have to submit a sick note for the first day of incapacity. This exemption may only be used up to three times per calendar year.
The exemption applies both to a one-day incapacity and to the first day of a longer period of incapacity. However, in the latter case, the employee must present a sick note from the second day of incapacity.
With this change in the law, the legislator wants to address the issue of retroactive determination of periods of incapacity.
However, the exemption does not prevent an employee from still having to inform his/her employer immediately of his/her absence from work. Moreover, if the employee uses the exemption, he/she is also required to immediately inform the employer of the address at which he/she will reside during the first day of incapacity, unless the address corresponds to his/her usual place of residence known to the employer.
Companies that employ fewer than 50 employees on 1 January of the calendar year in which the incapacity for work occurs can deviate from this new rule by entering into a collective labour agreement to this effect or by providing a deviation in the work rules.
New procedure medical force majeure
The amended procedure for the reintegration track for employees who are not fit to work came into force on 1 October 2022. This new procedure already clearly showed that it would not be possible to terminate the employment contract for medical force majeure as part of the reintegration track. Instead, a new special procedure must now be followed.
Highlights of this new procedure:
- The procedure can be initiated by either the employer or the employee – via registered letter – after the employee has been uninterruptedly unfit for work for at least 9 months and as long as no reintegration track is ongoing. A relapse within 14 days does not interrupt this period;
- When the proceedings are initiated by the employer, he must point out to the employee in his notification that he has the right (1) to ask the prevention officer-labour doctor to examine the possibility of adapted or different work and (2) to be assisted by a member of the trade union delegation during the proceedings.
- The prevention officer-labour doctor invites the employee at the earliest 10 calendar days after notification and examines him/her. Within 3 months, the prevention officer-labour doctor delivers his findings to the employer and to the employee by registered letter;
- The employee may appeal the decision of the prevention officer-labour doctor within 21 calendar days;
- What is also new is that during the examination or up to 7 calendar days after the decision of the prevention officer-labour doctor, the employee can request in writing to examine the possibilities for adapted or different work.
The employment contract can only be terminated for medical force majeure when the prevention officer-labour doctor has ruled that it is definitively impossible for the employee to perform the agreed work.
If the employee has not asked to examine options for other or adapted work, the termination may be determined after the appeal period has expired or after the appeal decision has been upheld.
If the employee did ask to examine options for other or adapted work, a medical force majeure will only be possible in the following two cases:
(1) the appeal period expired (or the decision was upheld on appeal) and the employer transmitted the reasoned refusal report to the employee and to the prevention officer-labour doctor;
(2) the appeal period has expired (or the decision was upheld on appeal) and the employee has rejected the proposed reintegration plan. A copy of this must be handed over to the prevention officer-labour doctor.
Amendment to the rules concerning a guaranteed income of a progressive return to work
Currently, the employer is not liable to pay a guaranteed income if the employee becomes fully unfit again during a period of progressive return to work.
This regulation is limited by the new Act to the first 20 weeks from the start of the progressive return to work. This means that if the employee becomes fully unfit to work again after this 20-week period, the employer will again have to pay the guaranteed income.
In view of the new rules on the sick note, it is necessary to check to see if your work rules need amending. More specifically, it should include the following:
- the employee is not required to provide a sick note for the first day of incapacity up to three times in a calendar year; or
- the company employs fewer than 50 workers and deviates from this statutory exemption by requiring a sick note from the first day of incapacity.
It is also recommended to check whether your work rules specify the other obligations that must be respected in the event of incapacity for work. These include the obligation on the employee to inform the employer immediately of his/her absence, the obligation to undergo a medical examination by the examining doctor (specifying, if necessary, the time slot during which the employee must remain available at home for this purpose) and the obligation to submit a duly completed sick note in cases other than those covered by the exemption.
Finally, remember that a new procedure must be followed to establish the termination of the employment contract due to medical force majeure and that the procedure can only be started at the earliest after the employee has been incapacitated for work for 9 months. Also bear in mind that these proceedings cannot be started as long as a reintegration track is ongoing for that employee.