New measures concerning incapacity for work
In a previous newsletter, we informed you that new measures have been introduced to modernise and make the Belgian labour market more flexible.
In this newsletter, we explain the most important new measures concerning incapacity for work as a result of the act of 30 October concerning various provisions on incapacity for work.
Abolition of medical certificate for one day of incapacity for work
Before the new act, which entered into effect on 28 November 2022, the employee had the following obligations in the event of incapacity for work:
- Inform the employer immediately;
- Provide a medical certificate from the first day of incapacity for work if a CLA in the company or the labour regulations foresees this or if the employer explicitly requests it. He must provide this medical certificate within two working days from the start of the incapacity for work unless a different period is stipulated in the company (in the working regulations or in a CLA).
The law containing various provisions on incapacity for work provides that the employee will no longer have to submit a medical certificate for the first day of incapacity for work, even if the employer requests it. As a result, as from 28 November 2022 the employee will be exempt from presenting a medical certificate for this first day of incapacity for work up to three times per calendar year, if the company provided this obligation in the first place.
The employee will still have to inform the employer immediately of his absence and additionally inform him of the address where he will be staying if it differs from the address known to the employer.
Companies with fewer than 50 employees on 1 January of the calendar year in which the incapacity for work occurs may derogate from this exemption. However, this must be explicitly included in a company CLA or in the working regulations.
New procedure for medical force majeure
Medical force majeure occurs when the employee is permanently unfit for work and can no longer perform his current job.
Until 28 November 2022, the termination of an employment contract for medical force majeure was only possible after the reintegration procedure had ended. Under the new legislation, medical force majeure will be completely separated from the reintegration procedure. The new procedure for medical force majeure can only be initiated after 9 months of continuous incapacity for work. If the employee has an ongoing reintegration procedure, you will have to wait until this procedure is finished.
The start of the procedure can still be requested both by the employee and the employer from the prevention advisor occupational doctor (hereinafter “PAOD”) of your external occupational prevention and protection service.
In summary, the following procedure will have to be followed:
- The PAOD will check whether it is really permanently impossible for the employee to perform the agreed work. During this procedure, the employee will have the opportunity to ask whether adapted or other work is possible.
- If the PAOD decides that adapted or other work is a possibility, the employer will have to check whether this is an option within the company.
- If adapted or other work is technically or objectively impossible, or cannot reasonably be required for valid reasons, the employer will have to argue this in writing, in a substantiated report.
The employment contract can therefore only be terminated for medical force majeure if the employee will indeed definitively be unable to perform the agreed work AND:
- The employee has not asked to explore options for adapted/other work;
- The employer cannot offer other/adapted work or if the employee has refused it.
If the procedure is not followed correctly and no medical force majeure is possible, the procedure ends and a new procedure can only be requested after another 9 months of continuous incapacity for work.
Reintegration procedure 2.0?
The goal of the reintegration procedure is to get sick workers back to work in the company.
As explained above, some changes were made to the reintegration procedure and it was also completely separated from medical force majeure.
We discuss the most important changes below:
- Both the employee and the employer can still take the initiative to start the reintegration procedure, but the employer can now request this as early as after 3 months of illness (instead of 4 months);
- If the PAOD decides that adapted work or another job is possible, the employer must either draw up a reintegration plan or, if it is not possible to offer adapted work or another job, the employer will have to provide detailed reasons for this impossibility.
- The end of the reintegration procedure does not mean that medical force majeure can be invoked. For medical force majeure, the procedure as explained above must be followed.
Changes concerning guaranteed salary
Until 28 November, an employer did not have to pay any guaranteed salary for an employee who progressively resumes work and then falls ill again completely.
From now on, this will be limited to the first 20 weeks counting from the first day of progressive resumption of work. Therefore, if the employee relapses after that 20-week period, the employer will have to pay the guaranteed salary again.
! Action point
Modify your working regulations if you have fewer than 50 employees and you want employees to submit their medical certificate still for one day of illness.
Contact our legal team at legal@propay.be for more information.
