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Headlines Labour and Employment - Long-term incapacity for work: the importance of a reintegration program and the possibility to terminate an employment agreement due to force majeure

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08/12/2016

The Belgian government wants to guide long-term ill employees towards (a quicker) work resumption, possibly in an adapted or different job. Therefore, a new legal framework has been developed. In the present Headlines we elaborate on the reintegration program that can be launched as from January 1, 2017 by or for employees who are temporarily or permanently unable to perform the agreed work. We also highlight the importance thereof for the possibility to terminate an employment agreement due to force majeure.

Legal framework
By means of 2 royal decrees, already published in the Official State Gazette, and 1 act, which is expected by the end of December 2016, the new policy will be shaped. For employers, primarily a royal decree of October 28, 2016 about the reintegration of incapacitated employees and the act containing various provisions on labour law in the context of incapacity for work (at this moment still a draft bill) are of importance.

Novelty?
The possibility to terminate an employment agreement due to medical force majeure already exists. Currently, an employment agreement can be terminated due to force majeure for medical reasons (and without the serving of a notice period or the payment of a severance indemnity) if it is determined that the employee is definitive incapacitated to perform the agreed work. This is to be supported by medical certificates of the treating physician and/or the company doctor. No minimum term applies.

New provisions
The new rules will however modify the existing legal situation with regard to definitive incapacity for work since, after the entry into force of the act, an employment agreement can only be terminated due to medical force majeure after a "reintegration" program.

The objectives of this reintegration program are :

- guiding long-term ill employees to adapted work or other work (temporarily or permanently); and
- facilitating and accelerating the return to work of incapacitated employees.

The reintegration program does however not apply in case of a return to work after an industrial accident or an occupational disease.

This reintegration program involves different phases :

(i)    the launch, by the company doctor, at the request of :

1.    the employee during his incapacity for work (or the treating physician), from the start of his incapacity for work but at the earliest as from January 1, 2017, or
2.    the Public Health advising doctor, or
3.    the employer, at the earliest as from 4 months after the start of the incapacity for work, or as soon as the employee has given him a certificate that confirms the definitive incapacity to perform the agreed work.
An employer can launch the reintegration program as from January 1, 2017 for the incapacities for work started as from January 1, 2016. From January 1, 2018, this will be possible for incapacities for work started before January 1, 2016.

(ii)    the reintegration assessment (by the company doctor) to evaluate if the employee will be able to perform the agreed work again in the long-term, if necessary subject to an adjustment of the workstation, and to examine the reintegration possibilities, based on the working capacities of the employee, which will lead to a decision of the company doctor (through a reintegration assessment form) ;

(iii)    the drafting of a reintegration plan when the employee is able to perform adapted work or other work (irrespective whether he has or has not the ability to resume the agreed work in the long-term). The employee is free to accept the plan or not and may appeal against the reintegration assessment that was made by the company doctor.

For a definitive incapacitated employee, the reintegration program shall solely be terminated in the three circumstances listed in the royal decree. Consequently, an employment agreement can only be terminated for force majeure thereafter.

Conclusion
The different steps in the procedure are rather formalistic and always require a specified time limit. The requirement to first finish a reintegration program before the employment agreement can be terminated, will probably cause that it will become more difficult to terminate an agreement due to force majeure.

An employer who is already in discussions with an incapacitated employee in order to terminate the employment agreement due to force majeure, would therefore do well to finalize these discussions before December 31, 2016.

Other methods to terminate the employment agreement

A reintegration program shall in no way affect the right to terminate an employment agreement, with the serving of a notice period or the payment of a severance indemnity.

Nonetheless, particular attention should be paid to the legislation related to non-discrimination (health and disability) and related to manifestly unreasonable dismissal.

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