Newsflash
Collective employment relations

The Royal Decree of 11 September 2022 amending the Code on Welfare at Work concerning the reintegration process for employees who are unable to work was published in the Belgian State Gazette of 20 September 2022. The majority of the amendments will come into force on 1 October 2022. Through these amendments, the Government aims to encourage the return to work of employees who are unable to work and emphasises the effective search for suitable work or other work within the company.

As of 1 October 2022, a number of changes have been made to the reintegration route for employees who are unable to work. Below is a summary of the main changes:

1. Contact with the employee who has been unable to work for at least 4 weeks

The prevention advisor-occupational physician (or his nursing staff) will now have to inform the employee who has been incapacitated for at least 4 weeks, as quickly as possible, of the various possibilities of returning to work. The aim of this proactive contact is to promote a rapid return to work under optimal conditions. It should be remembered that the employer is obliged to take the necessary measures to inform the prevention advisor-occupational physician of any incapacity for work of 4 weeks or more, whether or not the employee is subject to compulsory health surveillance.

2. Opening the reintegration process to victims of an accident at work or occupational disease

The possibility of starting a reintegration process will be open to employees who are victims of an accident at work or an occupational disease and who are temporarily unable to work and are no longer able to perform the agreed work. In this case, the reintegration process may be started at the earliest when the temporary incapacity for work has ceased in accordance with the legislation on accidents at work and occupational diseases.

3. New time limits

For the sake of clarity, time limits in this area are now defined in calendar days and no longer in working days.

Secondly, the possibility for the employer to initiate a reintegration process will now be open from 3 months of uninterrupted work incapacity instead of 4 months at present. The period of 3 months of incapacity to work is considered to be interrupted by a return to work of at least 14 days. As was already the case before, the reintegration process may also be initiated by the employer from the moment when the employee provides him with a certificate from his doctor showing that he is definitely unable to perform the agreed work.

It is also now expressly stipulated that both the prevention advisor-occupational physician and the employer must ensure that the invitation to a reintegration assessment reaches the employee. If the employee does not respond to the invitation, after having been invited 3 times with an interval of at least 14 days between each invitation, the reintegration process will be considered to have ended.

Finally, the deadline for the employee to appeal against the decision of definitive unfitness for work for the agreed work will be extended to 21 calendar days from the day after the decision is received, instead of the current 7 working days.

The time limits within which the employer must submit a reintegration plan or its reasoned report explaining why reintegration is not feasible are now extended to 63 calendar days from the time when the employer receives a reintegration assessment that mentions temporary incapacity (instead of the 55 working days previously provided for) and to 6 months when the reintegration assessment mentions permanent incapacity. The employee now has 14 calendar days, instead of 5 working days, to accept or reject the reintegration plan proposed by the employer.

4. Limitation of the decisions that can be taken by the prevention advisor-occupational physician

From now on, the reintegration process may lead to one of the following three decisions, instead of the five previously provided for. These decisions are the following:

  1. Decision A: The employee will eventually be able to return to the agreed work, possibly with an adaptation of the workstation, and in the meantime can do suitable work or other work.
  2. Decision B: the employee is permanently unfit to do the agreed work, but can do adapted or other work.
  3. Decision C: for medical reasons it is not (yet) possible to make an assessment of the reintegration. In this case, the reintegration process can be restarted after 3 months at the earliest, unless the prevention advisor-occupational physician decides on another period before restarting.

Decisions A and B should be accompanied by a description of the conditions and terms to be met by the adapted work or other work based on the employee’s current and potential health status.

5. Strengthening of the employer’s obligations

The Royal Decree reinforces the employer’s obligations to find a new job or an adapted workstation. The employer must take maximum account of the recommendations of the prevention advisor-occupational physician, the collective reintegration policy and, where applicable, the right to reasonable accommodation for disabled persons. The employer must also provide the employee with the necessary explanations of the proposed reintegration plan. If no alternative or suitable work can be offered, the employer must provide a documented justification that it has seriously explored the possibilities of alternative or suitable work. Finally, throughout the reintegration process, the employer should regularly remind the employee of his or her right to be assisted by an employee representative.

6. New measures for collective reintegration policy

The prevention advisor-occupational physician must provide the employer and the CPPW with an annual quantitative and qualitative report, respecting the confidentiality of personal data and medical secrecy, and containing specific information relating to various types of health examinations: spontaneous consultations, workstation adaptations, resumption of work after illness and accidents, pre-recovery visits, etc.

The employer must provide the CPPW annually with aggregated and anonymised information on the reintegration plans submitted and the reasoned reports. The employer should at least mention the steps taken to find other work or suitable work, or to adapt workstations, as well as the reasons why, if applicable, no reintegration plan was proposed or the reason for refusing a proposed reintegration plan.

The employer is also obliged to consult regularly with the CPPW about the possibilities, at collective (and therefore not individual) level, of adapting workplaces or allocating other workplaces.

7. Dissociation of the procedure for termination due to medical force majeure

In the future, the termination of the employment contract on the grounds of medical force majeure will be separated from the reintegration procedure. The prevention advisor-occupational physician must therefore be specifically consulted by the employer or the employee in order to decide whether it is definitely impossible for the employee to perform the agreed work. This examination can only take place after an uninterrupted incapacity to work for at least 9 months.

However, this particular procedure may lead to a reinstatement route at the request of the employee.

The changes to the procedure that must in future be followed in order to terminate the employment contract on the grounds of medical force majeure will not take effect on 1 October 2022. It requires an amendment to Article 34 of the Employment Contracts Act, which has yet to be adopted. We will keep you informed about the entry into force of this amendment in a future Newsflash.

Action point

As of 1 October 2022, please ensure that you comply with the new obligations and time limits for the reinstatement of incapacitated employees. Note that the RD does not stipulate any transitional measures so that reintegration decisions taken and issued before 1 October 2022 remain valid, but employers will have to apply the new deadlines to draw up a plan or report.