New regulatory framework on the reintegration of incapacitated employees

On 1 December 2016, two new Royal Decrees on the reintegration of long-term incapacitated employees entered into force. On 8 December 2016 the Chamber then adopted a bill that contains a new regulation for the termination of the employment contract due to force majeure as a result of the employee´s definitive work incapacity.

With these legislative initiatives, the government wishes to put more emphasis on the reintegration of work-incapacitated employees. The objective would be to look at the degree to which incapacitated employees can remain active within the company by providing them with temporarily or definitively adapted or different work. 

Medical force majeure

The new rules concerning the termination of the employment contract due to definitive work incapacity are inscribed in article 34 of the Employment Contract Act of 3 July 1978. It replaces the text from 2007, which had never entered into effect in any case.

The new article 34 provides that in the event of work incapacity due to illness or accident, as a result of which it becomes definitively impossible for the employee to perform the stipulated work, the employment contract may only be terminated due to force majeure after a re-integration process for the employee who is definitively unsuited for performing the agreed work.

The content of this re-integration process is specified in the Royal Decree of 28 May 2003 on supervising the health of employees (see below).

It is also defined in which cases the re-integration process can be regarded as definitively terminated and the employment contract can be terminated on the basis of force majeure. This is the case, for example, when the employer has received a form from the prevention advisor-occupational physician in which the latter rules that no adapted or different work is possible and the appeal period for the employee of 7 working days has expired.

Re-integration process

The Royal Decree of 28 May 2003 contains an entirely new section 6/1 “the re-integration process of an employee who temporarily or definitively cannot perform the agreed work” that provides for a customised re-integration process.

These new rules do not apply to a reemployment in the event of work-related accident or occupational illness.

Innovative is the fact that not only the incapacitated employee, his treating physician or the consulting physician of the health insurance fund, but also the employer himself, can ask the prevention advisor-occupational physician to initiate a re-integration process.

The employer can do this as of four months after the beginning of the work incapacity or as of the moment that he received a medical certificate from the employee’s treating physician from which it appears that the employee is definitively unable to perform the stipulated work.

After receipt of the re-integration request, the prevention advisor-occupational physician invites the employee as earlier for a re-integration assessment in order to examine the possibilities. He also reviews the workplace and the working environment.

Following this re-integration assessment, the prevention advisor-occupational physician reaches a decision as to whether or not the employee will be able to resume the stipulated work in the long run - if necessary, subject to adaptation of the workplace - and as to the possibility of the employee to, temporarily or definitively, perform adapted or different work - if necessary, subject to adaptation of the workplace.

If the decision of the prevention advisor-occupational physician for the employee defines the possibility to - either while waiting to resume the agreed work, or definitively - resume adapted or different work, the employer will have to draw up a re-integration plan that contains concrete and detailed measures with a view to reintegrating the employee in question.

These new rules already entered into force on 1 December 2016. As of 1 January 2017, employees can initiate a re-integration process, regardless of when their work incapacity began. Employers can only request a re-integration process as of 1 January 2017 for employees who are work-incapacitated as of 1 January 2016, and only as of 1 January 2018 for work incapacities that began before 1 January 2016.

The new regulations also devote attention to the collective framework. For example, a re-integration policy must be worked out at the company level. Each employer will have to regularly (at least once a year) consult with the Workplace Prevention and Protection Committee about the possibilities on the collective level of adapted or different work and the measures for the adaptation of workplaces.   

Finally, the Royal Decree of 8 November 2016 also entered into force on 1 December 2016. This Royal Decree provides for a process of reintegration on the job market for those who are work-incapacitated who are no longer bound by an employment contract and who are receiving a benefit. A separate re-integration process is provided for them.

For more information on this topic, you can consult Sébastien van Damme (author) and Sara Cockx (author and unit head).