The reintegration procedure 2.0 and new rules for the termination of an employment contract due to medical force majeure

A new Royal Decree of 11 September 2022 has been adopted to amend the part of the Code on well-being of workers that concerns the reintegration procedure. This Royal Decree has come into force on 1 October 2022 and contains various reforms. In addition, the government submitted a legislative proposal on 14 September which aims to establish a procedure of its own with regard to the termination of the contract for medical force majeure. This procedure was initially included in the reintegration procedure, but now it will be separated.

Reintegration procedure 2.0

The reintegration procedure has undergone some changes as of 1 October, which can be summarised as follows.

From now on, the employer may request a reinstatement process from 3 months instead of 4 months of incapacity for work. Furthermore, short periods of 14 days of return to work also count as incapacity for work. The employee (or the treating physician) can request the reinstatement process at any time.

The prevention consultant/occupational physician (PCOP) will only be able to choose between 3 decisions (previously the procedure offered 5).

• Decision A: eventually the worker can return to the agreed work, if necessary with an adaptation of the workplace. In the meantime, he or she is able to do suitable work or other work for the employer.
• Decision B: the worker is permanently incapacitated for the agreed work, but can do adapted or other work.
• Decision C: for medical reasons, it is (at the moment) not possible to make an assessment of the reintegration, in particular because it is not yet clear whether the worker is temporarily or permanently incapacitated for the agreed work, or because the worker still needs to undergo treatment before returning to work. The reintegration process is terminated, and can be restarted at the very earliest 3 months after this decision, unless the prevention consultant/occupational sets a different deadline.

Depending on the decision of the PCOP, the following deadlines have to be met for setting up a reintegration plan by the employer. In case of decision A, there is a deadline of 63 days. When the worker is permanently incapacitated (decision B), the employer now only has 6 months instead of one year to draft a reintegration plan.  

The reintegration procedure will be terminated in 5 cases.

• The worker has not accepted the repeated invitations to the reintegration assessment of the PCOP.
• The PCOP has opted for decision C.
• The employer has communicated a report explaining the impossibility to establish a reintegration plan to the PCOP and the worker.
• The employer has communicated the reintegration plan to the PCOP refused by the worker.
• The employer has communicated the reintegration plan to the PCOP and this was accepted by the worker.

The PCOP shall inform the insurance physician of the termination of the reintegration procedure and the reason for it.

The end of a reintegration procedure does not prejudice the possibility of starting a new reintegration journey in the future.

Medical force majeure

Following the introduction of a new bill by the government, the termination for medical force majeure will be adapted.

The procedure for termination for medical force majeure will be dissociated from the procedure for reinstatement, whereas initially a single procedure was provided for reinstatement and termination of the employment contract for medical force majeure.

After 9 months of incapacity for work, according to the new proposal, the employee or the employer may request an examination to assess whether the employee is definitively incapable to work.

The employment contract may only be terminated for reasons of force majeure when it is clear that it is definitively impossible for the employee to perform the agreed work and one of the following situations supply:

• the employee has not asked to examine the possibilities for suitable work or alternative work.
• the worker has asked to examine the possibilities for suitable work or alternative work and the employer has given the worker the motivated report in which he explains why the establishment of a plan for adapted or alternative work is technically or objectively impossible or cannot be required for justified reasons.
• the worker has asked to examine the possibilities for suitable work or alternative work and the employer has provided the worker and the PCOP with the plan for adapted or other work refused by the worker.

Sources:

• Royal Decree of 11 September 2022: Moniteur Belge - Belgisch Staatsblad (fgov.be)
• Draft Act containing various provisions on incapacity for work: pdf (dekamer.be)

Take aways:

• A number of deadlines in the reintegration procedure are modified.
• The procedure for termination for medical force majeure will be dissociated from the procedure for reinstatement. It will be more difficult to terminate the employment relationship for reasons of force majeure.
• The Royal Decree has come into force on 1 October 2022, but the employers should also keep a close eye on the date planned entry into force of the Draft Act containing various provisions on incapacity for work and prepare themselves for the new obligations.
• Make sure that the new procedures regarding re-integration and medical force majeure will be integrated in your company.