From 1 January 2017 employees with long-term incapacity can apply for a re-integration program and force majeure for medical reasons is only possible upon completion of the re-integration program
In an effort to help long-term ill persons to resume work, the government provides the possibility for such employees to resume work (partially) through a re-integration program. Employers will be actively involved in such programs. The first re-integration programs can already be launched as from 1 January 2017. Employers are better as soon as possible prepared to deal with such programs. New rules will determine the employment position of the concerned employee during such re-integration program and rules on force majeure for medical reasons change.
General
The final piece of these new rules, more precisely the draft act on several dispositions in employment law related to incapacity has been adopted in the Commission Social Affairs of the Parliament. This draft act will soon be published in the Belgian Official Journal. No specific date of entry in force has been provided, which means that the new act will enter into force 10 days after publication.
Two Royal Decrees formalize the re-integration program and have already been published in the Belgian Official Journal: (1) the RD of 28 October 2016 amending the RD of Health Monitoring of 28 May 2003 and (2) the RD of 8 November 2016 amending the Implementation Decree of 3 July 1996 of the Act concerning the compulsory insurance for health care and benefits. Both Royal Decrees enter into force today (1 December 2016).
Until today, no specific efforts have been made to encourage employees during their incapacity to search for a suitable employment, neither within the company, neither outside of it. Employer and employee could informally and without any engagement agree, with the permission of the Public Health advising doctor, to resume work progressively (part time) during the incapacity for work (and with partial loss of sickness benefits) in case the health status would permit this. However, this system is free of any engagement, which makes that employers and employees were not inclined to cooporate.
Re-integration program
This is going to change drastically. The main principles of a re-integration program are the following:
- From the start of his incapacity for work, an employee has the right to launch a re-integration program in his company. He/she can launch such application as from 1 January 2017, regardless the starting date of the incapacity for work.
- The employer can also launch a re-integration program, but at the earliest as from 4 months after the start of the incapacity for work of the employee or as soon as the employee has given him a certificate from his/her treating doctor that confirms definitive incapacity. Employers can launch such re-integration program (1) as from 1 January 2017 for the incapacities for work started as from 1 January 2016 and (b) from 1 January 2018 for incapacities for work started before 1 January 2016.
- Under certain conditions, the Public Health advising doctor can ask for a re-integration program and even the treating doctor can do so with the consent of the employee.
- Once a re-integration program has been launched, the company doctor will evaluate the health of the employee and will take a decision concerning his temporary/definitive incapacity for work and the possibility whether or not the employee is able to do adapted/other work. The parties will be informed of this decision.
- In case the company doctor decides that adapted/other work is possible, it is the employer’s turn again: in agreement with the employee, the company doctor and others who could have a positive influence on the success of the re-integration, the employer drafts a re-integration plan. However, he can also decide not to do that if he considers that this is technically or objectively impossible or that this can not be required for reasonable grounds. The employer informs the other parties of his decision. The employee decides finally whether or not he consents with the proposed re-integration plan.
Employment position
The new act regulates the employment position of the employee who has temporarily resumed other or adapted work with the permission of the Public Health advising doctor and with consent of the employer:
- The employment contract is not suspended. This means that the notice period continues to run, in case the employer has terminated the employment contract with a notice period before or during the period of other/adapted work.
- The employee is presumed to remain employed in his initial employment contract. No (other) partial employment contract comes in place.
- Acquired advantages or rights are maintained, except when employee and employer would determine otherwise.
- In an annex to the employment contract parties could describe certain specific aspects (f.i. work schedule, nature or volume of adapted work), but there is no obligation to do so.
- In case the employment contract is terminated during the period of other/adapted work with the payment of a severance indemnity, this indemnity will be calculated based on the remuneration due before the period of other/adapted work.
- In case the employee would become incapable to work during the period of other/adapted work (except because of an industrial accident or occupational disease), the employer must not pay the guaranteed salary.
Force majeure for medical reasons
The new act also states that force majeure for medical reasons (implying the end of the employment contract without the payment of a severance indemnity or the serving of a notice period) can only be invoked by the employer and/or the employee after full completion of the re-integration program of the employee. This is so:
- In case the company doctor has decided that there is definitive incapacity, without the possibility of other/adapted work: after fully exhausting the appeal procedure against the decision of the company doctor or;
- In case the company doctor has decided that there is definitive incapacity, but with the possibility of other/adapted work: at the moment the employer informs the company doctor of his decision to not draft a re-integration plan or at the moment the employer delivers the re-integration plan with which the employee does not consent to the company doctor.
The new act also clarifies that the employment contract can always be terminated with a notice period or with the payment of a severance indemnity.
Action plan
From 1 January 2017 employers will have to deal with employee’s applications for re-integration programs.
Employers should contact their (external) company doctor to be sufficiently informed and prepared. They should also start to think about the roll-out of a clear re-integration policy (f.i. will the company automatically appeal for a re-integration project four months after the start of the employee’s incapacity or not/only for certain categories of employees?). This is a good point to schedule on one of the next meetings of the Committee for Prevention and Protection at the Workplace.
Employers who offer already certain re-integration programs should consider whether these are compliant with the new rules and adapt them accordingly, if necessary.
Employers who at last want to dismiss an employee in incapacity should do this with the necessary precaution. Think about a correct and objective justification of the dismissal to avoid any issues on manifestly unreasonable dismissal or discrimination based on health.