2022 brings a warm autumn in terms of HR law with (1) the labour deal, (2) new legislation on transparent and predictable working conditions, (3) new legislation on the work-life balance for parents and carers, and (4) changes to reintegration processes for sick employees and the termination of employment contracts on grounds of medical force majeure.
In a series of four Legal Eubdates, you will read what impact these measures could have on your HR policy.
In this fourth and final contribution, you will get an overview of the latest changes to the rules on incapacity to work. Earlier, the legislator modified the reintegration process. There now follow changes involving the obligation to present a medical certificate, the termination of the employment agreement due to medical force majeure, the guaranteed remuneration during a period of partial work resumption, and the employer’s compensatory contribution for invalidity.
The act of 30 October 2022 implemented the first three changes with effect from 28 November 2022, while the employer’s compensatory contribution applies to periods of invalidity which started on or after 1 January 2022.
Employees are exempt from the obligation to submit a medical certificate for the first day of incapacity to work up to three times a year. Employers with fewer than 50 employees can derogate from this through a collective labour agreement or the work regulations.
Termination due to medical force majeure
From now on, the employment agreement can only be terminated due to medical force majeure – i.e. without any notice period or severance payment – by following a specific procedure. You, as an employer, or your employee can start the procedure at the earliest after nine months of continuous incapacity to work, provided that no reintegration process is ongoing. The prevention advisor-company doctor checks whether the employee is permanently incapacitated to perform the agreed work. In that case, the employment agreement may be terminated for medical force majeure if:
- the employee has not asked for adapted or different work;
- the employer can demonstrate that adapted or different work is impossible or cannot be demanded; or
- the employee rejects the proposed adapted or different work.
If your employee becomes incapacitated to work during a period of partial work resumption (with the permission of the mutuality’s doctor), until recently you did not owe any guaranteed remuneration. From now on, this exemption only applies during the first 20 weeks of partial work resumption.
Employer’s compensatory contribution for invalidity
As an employer, if you have an above-average inflow of employees into invalidity, you will be required to pay a quarterly compensatory contribution. The act of 20 November 2022 refines the act of 27 December 2021, which introduced the compensatory contribution.
Pursuant to the act of 20 November 2022, the compensatory contribution is due when, during the reference quarters (i.e. the quarter during which the invalidity starts and the three preceding quarters) a minimum of three employees have entered into invalidity.
We would be happy to provide you with a full overview of the new arrangements and to advise and assist you in adapting your company’s policy to these new regulations.