Employees incapacitated for work - Re-integration and termination due to medical force majeure

The long awaited law on various provisions regarding labour law in the context of incapacity for work was finally published, together with two royal decrees which entered into force on 1 December 2016. These regulations introduce the principle of a re-integration track within the company for employees temporarily or permanently incapacitated for work.

The law provides the possibility to conclude an annex to the employment contract in which the volume of work, the work schedule, the salary or the nature of the employment can be determined. The employee will keep enjoying all the acquired benefits unless otherwise agreed between the parties. There also is a rebuttable presumption that the previous employment relationship will be retained.

The second important amendment is that termination of an employment contract due to medical force majeure will only be possible after the re-integration procedure of an employee permanently incapacitated for work comes to a definitive end.

In addition to the employee and the medical officer of the health insurance fund, the employer can also ask the prevention advisor - company doctor to initiate the re-integration procedure.  However, this can only be done after at least four months of work incapacity or after the receipt of a certificate of the treating doctor attesting to the employee’s permanent work incapacity.

Based on the re-integration assessment, the prevention advisor - company doctor can, among others, indicate whether the employee is capable of working for the employer on a temporarily or permanently adapted basis.

In this case, the employer will have to draw up a reintegration plan in consultation with the employee and the prevention advisor - company doctor. It is only when this turns out to be technically or objectively impossible that the employer will avoid this obligation. The employer will have to give reasons for this in a report.

After the receipt of the re-integration plan, the employee will have five days to decide whether or not to accept it.

As of 1 January 2017 incapacitated employees will be able to initiate a re‑integration procedure, regardless of the starting date of their work incapacity. Employers will be able to initiate this procedure as of 1 January 2017 for employees whose work incapacity started after 1 January 2016. As of 1 January 2018, employers will be able to initiate the procedure for employees whose work incapacity started before 1 January 2016.

In order to develop a re-integration policy, the employer has to consult at least once a year with the Committee for Prevention and Protection at Work on the possibilities for adapted or alternative employment and on how to adapt workstations.

> Action point

Take these new rules into account and identify any of your employees that are long-term incapacitated for work and for whom a re-integration procedure will be possible. Draw up a re‑integration policy in consultation with the Committee for Prevention and Protection at Work.