On 20 September 2022, a Royal Decree dated 11 September 2022 amending the reinstatement process (trajet de reintegration/re-integratietraject) for incapacitated employees was published in the Belgian Official Gazette.
This Royal Decree should be read in conjunction with the draft Law containing various labour provisions. This draft law is intended to amend the Employment Contracts Act of 3 July 1978 and provide for several changes regarding medical force majeure. It is currently pending before the Belgian parliament.
Reinstatement process 2.0
Created in 2016, the initial reinstatement process was aimed at fostering the reinstatement of long-term incapacitated employees within their employing organisation. Practice showed, however, that the system often led to the conclusion that the employee was permanently unable to perform their job, giving employers leeway for termination of the employment contract for medical force majeure.
In light of the above experience, the reinstatement process has been amended (“2.0”). The new reinstatement process is aimed at further increasing the chances of reinstatement of long-term incapacitated employees. The employer’s obligation to seek adapted or alternative work is increasingly emphasised. Furthermore, termination of the employment contract for medical force majeure will no longer be linked to the reinstatement process.
Initiation of the reinstatement process 2.0
The reinstatement process 2.0 can be initiated by:
- the employee (or their treating physician), from the first day of incapacity for work; or
- the employer, at the earliest after an uninterrupted period of 3 months of incapacity for work (or as from the moment that the employee provides a medical certificate indicating a permanent inability to perform the agreed work).
Initiation by the advising physician of the employee’s health insurance fund is no longer possible.
Possible outcomes
Following the procedure’s initiation, the employer’s prevention adviser-occupational physician will examine the employee, their working conditions and workstation and take a decision within 49 calendar days after the day following receipt of the request to initiate the reinstatement process.
The prevention adviser-occupational physician can take one of the following three decisions (instead of 5 under the ‘old’ reinstatement process):
- Decision A: the employee will, in the future, be able to resume the agreed work (if necessary, with adaptation of the workstation) and can perform adapted or other work in the meantime.
- Decision B: the employee is permanently unable to perform the agreed work, but can perform adapted or other work.
- Decision C: for medical reasons, it is not (for the time being) possible to perform a reinstatement assessment, because:
- it is not yet clear whether the employee is temporarily or permanently unable to perform the agreed work, or
- because the employee still needs to undergo treatments before work resumption is possible.
In such a case, the reinstatement process will be terminated and be restarted at the earliest 3 months after the decision, unless the prevention adviser-occupational physician has good reasons to deviate from this deadline.
The number of decisions which the prevention adviser-occupational physician can take has thus been reduced from 5 to 3. Quite importantly, the prevention adviser-occupational physician no longer has the ability, as part of the reinstatement process, to conclude that the employee is permanently unable to perform any work.
If the employee fails to respond to the prevention adviser-occupational physician’s invitation to be examined 3 times (with 14 calendar days between each invitation), the reinstatement process will be terminated. The employer and employee’s attending physician will be informed accordingly.
Action by the employer
Following a decision A or B:
- the employer must examine the possibilities for adapted or other work. The employer draws up a reinstatement plan and provides the employee therewith within a period of 63 calendar days (in case of a decision A) or 6 months (in case of a decision B).
- the employer can refuse to draw up a reinstatement plan if this is technically or objectively impossible or cannot be reasonably required for valid reasons. In such a case, the employer should draw up a reasoned report explaining the reasons for the refusal and demonstrating that it seriously considered possibilities for adjustment of the workplace and/or adapted or other work. The employer should also consider the right to reasonable adjustments for persons with disabilities.
- the employee has 14 calendar days (beginning on the day following the day that the employee received the reinstatement plan) to agree or not agree with the proposed reinstatement plan. If the employee fails to react, after having received a reminder of the employer, the employee is considered to have refused the reinstatement plan.
Appeal by the employee
The employee who does not agree with the prevention adviser-occupational physician’s decision that they are permanently unable to perform the agreed work can file an appeal within 21 calendar days (instead of 7 calendar days in the past) by registered mail to the physician social inspector of the General Directorate for the Supervision of Wellbeing at Work and the employer. The appeal will be addressed within maximum 42 calendar days.
Medical force majeure
The Royal Decree also provides for a new procedure as regards termination of the employment contract for medical force majeure. The procedure provided by this Royal Decree is not yet in force, being contingent on a modification of the Employment Contracts Act of 3 July 1978 that is still pending before the Belgian parliament.
One major change is that this new procedure can only be initiated if the employee has been uninterruptedly unable to perform the agreed work for at least 9 months (and insofar as no reinstatement process is ongoing). The procedure can be started at the employer’s or the employee’s request.
The procedure can be summarised as follows:
- Examination of the employee: At the earliest 10 days after the employer’s or employee’s notification, the employee will be invited for an examination by the prevention adviser-occupational physician. The invitation shall mention the employee’s right to be assisted by the trade union delegation during this procedure. If necessary, the employee’s place of work can be examined as well.
- Examination of alternative work arrangements: The employee can indicate in writing whether they wish that the possibility to perform adapted or other work should be investigated. In such an event, the prevention adviser-occupational physician will determine the conditions and modalities under which adapted or other work could be performed. The employer may be required to draw up a reinstatement plan according to the procedure applicable under the reinstatement process 2.0.
- Consultation with other physicians: With the employee’s consent, the prevention adviser-occupational physician may consult with the employee’s attending physician, the physician who prepared the medical certificate concluding that the employee is permanently incapacitated and/or the employee’s health fund’s advising physician. On this basis, the prevention adviser-occupational physician will decide whether or not the employee is permanently unable to perform the agreed work.
- Decision: The prevention adviser-occupational physician will inform the employer and employee of their decision within 3 months from the receipt of the notification.
- Appeal: The employee can appeal this decision within 21 calendar days by registered mail addressed to the physician social inspector of the General Directorate Supervision of Wellbeing at Work and the employer.
The employment contract can only be terminated for medical force majeure if the prevention adviser-occupational physician (or the physician social inspector in the context of the appeal procedure) decides that the employee is permanently unable to perform the agreed work (and no successful appeal against this decision was launched).
Entry into force
The Royal Decree will enter into force on 1 October 2022, except for the provisions relating to the new procedure on medical force majeure. These provisions will enter into force on the same date that the Law containing various labour provisions will enter into force (this date still being unclear).
For further information, please contact Julien Hick (+32 2 629 42 53 or Jhick@akd.eu) or Heleen Franco (+32 2 629 42 73 or Hfranco@akd.eu).
On 20 September 2022, a Royal Decree dated 11 September 2022 amending the reinstatement process (trajet de reintegration/re-integratietraject) for incapacitated employees was published in the Belgian Official Gazette.
This Royal Decree should be read in conjunction with the draft Law containing various labour provisions. This draft law is intended to amend the Employment Contracts Act of 3 July 1978 and provide for several changes regarding medical force majeure. It is currently pending before the Belgian parliament.
Reinstatement process 2.0
Created in 2016, the initial reinstatement process was aimed at fostering the reinstatement of long-term incapacitated employees within their employing organisation. Practice showed, however, that the system often led to the conclusion that the employee was permanently unable to perform their job, giving employers leeway for termination of the employment contract for medical force majeure.
In light of the above experience, the reinstatement process has been amended (“2.0”). The new reinstatement process is aimed at further increasing the chances of reinstatement of long-term incapacitated employees. The employer’s obligation to seek adapted or alternative work is increasingly emphasised. Furthermore, termination of the employment contract for medical force majeure will no longer be linked to the reinstatement process.
Initiation of the reinstatement process 2.0
The reinstatement process 2.0 can be initiated by:
- the employee (or their treating physician), from the first day of incapacity for work; or
- the employer, at the earliest after an uninterrupted period of 3 months of incapacity for work (or as from the moment that the employee provides a medical certificate indicating a permanent inability to perform the agreed work).
Initiation by the advising physician of the employee’s health insurance fund is no longer possible.
Possible outcomes
Following the procedure’s initiation, the employer’s prevention adviser-occupational physician will examine the employee, their working conditions and workstation and take a decision within 49 calendar days after the day following receipt of the request to initiate the reinstatement process.
The prevention adviser-occupational physician can take one of the following three decisions (instead of 5 under the ‘old’ reinstatement process):
- Decision A: the employee will, in the future, be able to resume the agreed work (if necessary, with adaptation of the workstation) and can perform adapted or other work in the meantime.
- Decision B: the employee is permanently unable to perform the agreed work, but can perform adapted or other work.
- Decision C: for medical reasons, it is not (for the time being) possible to perform a reinstatement assessment, because:
- it is not yet clear whether the employee is temporarily or permanently unable to perform the agreed work, or
- because the employee still needs to undergo treatments before work resumption is possible.
In such a case, the reinstatement process will be terminated and be restarted at the earliest 3 months after the decision, unless the prevention adviser-occupational physician has good reasons to deviate from this deadline.
The number of decisions which the prevention adviser-occupational physician can take has thus been reduced from 5 to 3. Quite importantly, the prevention adviser-occupational physician no longer has the ability, as part of the reinstatement process, to conclude that the employee is permanently unable to perform any work.
If the employee fails to respond to the prevention adviser-occupational physician’s invitation to be examined 3 times (with 14 calendar days between each invitation), the reinstatement process will be terminated. The employer and employee’s attending physician will be informed accordingly.
Action by the employer
Following a decision A or B:
- the employer must examine the possibilities for adapted or other work. The employer draws up a reinstatement plan and provides the employee therewith within a period of 63 calendar days (in case of a decision A) or 6 months (in case of a decision B).
- the employer can refuse to draw up a reinstatement plan if this is technically or objectively impossible or cannot be reasonably required for valid reasons. In such a case, the employer should draw up a reasoned report explaining the reasons for the refusal and demonstrating that it seriously considered possibilities for adjustment of the workplace and/or adapted or other work. The employer should also consider the right to reasonable adjustments for persons with disabilities.
- the employee has 14 calendar days (beginning on the day following the day that the employee received the reinstatement plan) to agree or not agree with the proposed reinstatement plan. If the employee fails to react, after having received a reminder of the employer, the employee is considered to have refused the reinstatement plan.
Appeal by the employee
The employee who does not agree with the prevention adviser-occupational physician’s decision that they are permanently unable to perform the agreed work can file an appeal within 21 calendar days (instead of 7 calendar days in the past) by registered mail to the physician social inspector of the General Directorate for the Supervision of Wellbeing at Work and the employer. The appeal will be addressed within maximum 42 calendar days.
Medical force majeure
The Royal Decree also provides for a new procedure as regards termination of the employment contract for medical force majeure. The procedure provided by this Royal Decree is not yet in force, being contingent on a modification of the Employment Contracts Act of 3 July 1978 that is still pending before the Belgian parliament.
One major change is that this new procedure can only be initiated if the employee has been uninterruptedly unable to perform the agreed work for at least 9 months (and insofar as no reinstatement process is ongoing). The procedure can be started at the employer’s or the employee’s request.
The procedure can be summarised as follows:
- Examination of the employee: At the earliest 10 days after the employer’s or employee’s notification, the employee will be invited for an examination by the prevention adviser-occupational physician. The invitation shall mention the employee’s right to be assisted by the trade union delegation during this procedure. If necessary, the employee’s place of work can be examined as well.
- Examination of alternative work arrangements: The employee can indicate in writing whether they wish that the possibility to perform adapted or other work should be investigated. In such an event, the prevention adviser-occupational physician will determine the conditions and modalities under which adapted or other work could be performed. The employer may be required to draw up a reinstatement plan according to the procedure applicable under the reinstatement process 2.0.
- Consultation with other physicians: With the employee’s consent, the prevention adviser-occupational physician may consult with the employee’s attending physician, the physician who prepared the medical certificate concluding that the employee is permanently incapacitated and/or the employee’s health fund’s advising physician. On this basis, the prevention adviser-occupational physician will decide whether or not the employee is permanently unable to perform the agreed work.
- Decision: The prevention adviser-occupational physician will inform the employer and employee of their decision within 3 months from the receipt of the notification.
- Appeal: The employee can appeal this decision within 21 calendar days by registered mail addressed to the physician social inspector of the General Directorate Supervision of Wellbeing at Work and the employer.
The employment contract can only be terminated for medical force majeure if the prevention adviser-occupational physician (or the physician social inspector in the context of the appeal procedure) decides that the employee is permanently unable to perform the agreed work (and no successful appeal against this decision was launched).
Entry into force
The Royal Decree will enter into force on 1 October 2022, except for the provisions relating to the new procedure on medical force majeure. These provisions will enter into force on the same date that the Law containing various labour provisions will enter into force (this date still being unclear).
For further information, please contact Julien Hick (+32 2 629 42 53 or Jhick@akd.eu) or Heleen Franco (+32 2 629 42 73 or Hfranco@akd.eu).