Reintegration of sick workers: new rules
On 1 December 2016, two Royal Decrees concerning the reintegration of long-term sick workers entered into force. An Act "concerning various labour law provisions related to incapacity for work" was adopted in the Chamber of Representatives on 8 December 2016 and provides a new legal basis for termination of an employment agreement due to force majeure.
The most important new features are described below.
Introduction of a reintegration programme
The Royal Decree of 28 October 2016 "amending the Royal Decree of 28 May 2003 concerning the monitoring of the health of workers with respect to the reintegration of sick workers" adds new provisions to the Royal Decree of 28 May 2003 concerning the introduction of a programme to support the reintegration of workers who, either temporarily or permanently, can no longer perform the agreed work.
The aim is to offer sick workers adapted or different work, either temporarily until the work agreed between the parties can be resumed, or permanently if the worker is permanently incapable of performing the agreed work.
The most important change is that, from now on, not only the worker, his own general practitioner (with the worker's consent) or the doctor-advisor of the health insurance fund, but also the employer can ask the prevention advisor-company doctor to set up a reintegration programme.
However, this potential proactive approach of the employer is subject to conditions. The employer can only request a reintegration programme from the fourth month following the beginning of the worker's incapacity for work, or from the moment the worker hands him a medical certificate from his own doctor which indicates permanent incapacity to perform the agreed work in future.
Following a reintegration assessment, the prevention advisor-company doctor will decide whether the worker might be able to resume the agreed work in the future (possibly with adaption of the workplace) and whether the worker would be able to perform adapted work or even different work (possibly with adaption of the workplace) in the meantime or permanently. If the conclusion is that the worker could resume adapted work or different work, either until the work agreed between the parties can be resumed or permanently, the employer will be obliged to develop a reintegration programme including specific and detailed measures to reintegrate the worker. Throughout the reintegration programme, the worker can be assisted by a workers' representative from the committee for prevention and protection at work or, in the absence thereof, by a union representative of his choice.
The Royal Decree of 28 October 2016 entered into force on 1 December 2016. Specifically, workers can start a reintegration programme from 1 January 2017 onwards, irrespective of when their incapacity for work began. Employers can initiate a reintegration programme from 1 January 2017 onwards for incapacity for work which began from 1 January 2016 onwards, and from 1 January 2018 onwards for incapacity for work which began before 1 January 2016.
A second Royal Decree of 8 November 2016 "amending the Royal Decree of 3 July 1996 concerning the execution of the Act on compulsory health insurance and indemnities coordinated on 14 July 1994 with regard to socio-professional reintegration" aims to promote the socio-professional integration of a worker who is no longer or can no longer be employed by his employer, by helping him to find a job with another employer or within another sector. It introduces in particular an initial analysis of the worker's remaining ability by the doctor-advisor of the health insurance fund, at the latest two months after the declaration of incapacity to work (unless the worker has already asked the prevention advisor-company doctor to set up a reintegration programme on the basis of the Royal Decree of 28 May 2003). This Royal Decree, which to some extent complements the Royal Decree of 28 October 2016, also entered into force on 1 December 2016.
Introduction of a reintegration policy at collective level
The Royal Decree of 28 October 2016 also promotes the collective aspect of the implementation of a reintegration policy within the company. From now on, the employer must regularly, and at least annually, consult the committee for prevention and protection at work concerning the possibilities, at the collective level, of adapted work or different work and of measures to adapt the workplaces. Once a year, the collective aspects of the reintegration policy will be evaluated and will be the subject of discussions within the committee for prevention and protection at work on the basis of a report from the prevention advisor-company doctor.
Termination of the employment agreement due to force majeure
Besides the two above-mentioned Royal Decrees, a draft Act "concerning various labour law provisions related to incapacity for work" was submitted in the Chamber on 16 November 2016 and adopted on 8 December 2016. After validation and promulgation, the act will enter into force within 10 days after its publication in the Belgian Official Gazette.
In addition to various amendments aimed at regulating labour law aspects of the particular situation provided for in the legislation concerning health care and sickness allowances ("RIZIV"/"INAMI"), where the worker is authorised by the doctor-advisor of the health insurance fund, temporarily and in agreement with the employer to resume adapted work or other work during his incapacity for work, the act adds in particular a new legal basis to the Employment Agreements Act for termination of the employment agreement due to force majeure.
The new article 34 provides that incapacity for work resulting from an illness or an accident which permanently prevents the worker from performing the agreed work can only lead to termination of the employment agreement due to force majeure "after a reintegration programme for the worker".
The various situations in which the reintegration programme can be considered as "definitively terminated" in order to allow termination of the employment agreement due to force majeure have been added to the Royal Decree of 28 May 2003 concerning the monitoring of the health of workers. The circumstance where the worker does not agree to the reintegration programme established by the employer is one of these situations.
As a result of these legislative and regulatory developments, employers have now been given the necessary tools to (try to) reintegrate their long-term sick workers into the company.
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