Important changes to the process of reintegrating an employee on long-term sick leave in Belgium

As a result, several key changes have been made to the reintegration procedure as set out in the Wellbeing Code. Furthermore, the reintegration process will no longer be linked to the termination procedure for medical force majeure. A distinct procedure must be followed if the employer wishes to terminate an employment agreement for medical force majeure.

Background

The reintegration process framework was first established in 2016. The purpose was to increase the chances that an employee on long-term sick leave would return to work. Alternatively, if the re-integration process had established an employee’s permanent incapacity to return to work, the re-integration process allowed the employer to invoke medical force majeure and terminate the employee’s employment agreement without notice or compensation in lieu of notice.

The current changes are intended to increase the successful reinstatement of an employee on long-term sick leave within the organisation.

What are the key changes to the reintegration process?

Initial request can only be made by the employer or employee

Either the employee (or their treating physician, with their consent) or the employer may request the start of the reintegration process. The advising doctor of the health insurance fund may no longer initiate the process, although they will remain involved. Important to note is that the employer may start up the process after three months of the employee going off on sick-leave, whereas until now it was necessary to wait four months.

Health and Safety Advisor – Occupational doctor (HSA-OD) can take three possible decisions, no longer five

From now on, the HSA-OD can take three possible reintegration decisions:

• A: temporary incapacity for the agreed work and adapted or other work in the meantime;
• B: permanent incapacity for the agreed work but other or adapted work is possible; or
• C: reintegration assessment not possible for medical reasons.

This means that it is no longer possible for the HSA-OD to decide that the employee is permanently unfit for the agreed work and that no other or adapted work is possible (ie old decision ‘D’).

Clarification of the employer’s duties in relation to the integration plan

When drafting the reintegration plan, the employer must take the best possible account of the terms and conditions set by the HSA-OD, the collective framework for reintegration and, where appropriate, the right to reasonable accommodation for people with disabilities.

If the employer can offer no other or adapted work, a reasoned report must demonstrate that they have seriously investigated the possibilities of other or adapted work.

Changes to the time limits

For the sake of clarity, the time limits are now expressly determined in calendar days, and no longer in working days. A number of time limits have been extended, such as the term for the employee to lodge an appeal against the reintegration decision. Other terms are shortened, such as the term for the employer to draft a reintegration plan for an employee who is permanently unfit for the agreed work.

Collective reintegration policy

The Wellbeing Code already required employers to regularly consult with the Health and Safety Committee on a collective reintegration policy. From now on, companies will also need to prepare (and submit to the Health and Safety Committee) a document in the context of the annual evaluation of the collective reintegration policy, containing anonymised and globalized elements from the reintegration plans and reasoned reports.

Sanctions

As before, no express sanctions are provided in the Wellbeing Code if an employee does not cooperate. However, if an employee does not cooperate with their health insurance fund in the framework of the new Back to Work regulations, specific sanctions will apply as of 1 January 2023. Likewise, employers who have an excessive number of employees on long-term sick leave, will have to pay specific contributions on their total gross wages.  Legislation is currently pending to implement these sanctions.

In addition, the government has very recently announced its intention to have employers pay a EUR1,800 contribution to a “Back to work”-fund for every dismissal for medical force majeure.  On the other hand, employers would receive a EUR1,000 premium for every employee that is able to return to work due to the employer having made the necessary accommodations. These measures are still in an initial phase and are to be further assessed and analysed following the required governmental and legislative action.

Will it still be possible to terminate for medical force majeure?

The reintegration process and the procedure for termination for medical force majeure are disconnected. The reintegration process will have the sole purpose of reinstating the employee in the organisation.

A separate procedure for termination for medical force majeure will be provided in the Wellbeing Code. However, this procedure will only enter into effect when the necessary changes are made to the relevant articles of the Employment Agreements Act. A draft act to that effect is currently pending before parliament, and it is expected that this will enter into force later this year.

When it enters into effect, this new procedure for medical force majeure may be started by the employee or the employer, but only when the employee has been on uninterrupted work incapacity for at least nine months, and if no reintegration process is currently ongoing. A key role will be exercised by the HSA-OD, who must provide an assessment as to whether the employee is permanently unfit for the agreed work. The procedure will also allow an investigation into the possibilities for other or adapted work.

What does this mean for any ongoing reintegration processes?

The new rules entered into force on 1 October 2022, except for the provisions relating to the new procedure for medical force majeure.

As a result, the new rules will apply immediately to all ongoing reintegration processes. This means, for example, that any reintegration decision taken before 1 October 2022 will remain valid, but the employer will have to apply the new time limits to draw up a plan or report.

With regard to medical force majeure: the current rules can be applied as long as the new procedure has not entered into force.

Please contact us if you would like a comprehensive overview of all new procedures. We can also assist you in reviewing and updating your company’s collective reintegration policy, and advise on how to deal with any pending or upcoming reintegration processes.