1. Reintegration process 2.0

1.1 What is the scope of application?

The reintegration process applies to any employee who is declared unfit to perform the agreed work by his/her attending physician.

If the incapacity to perform the agreed work is the result of an occupational disease or an occupational accident, the reintegration process can only be started when the temporary incapacity for work ends in accordance with the legislation on occupational accidents and diseases.

1.2 Who can initiate the reintegration process and when?

The reintegration process can only be initiated during a period of incapacity for work and this at the request of:

  • The employee and/or his treating doctor from the first day of incapacity for work;
  • The employer on condition that the employee is uninterruptedly unable to perform the agreed work for a period of 3 months. A return to work of less than 14 calendar days does not interrupt the period of incapacity.
  • The employer immediately if it has received a certificate from the employee in which the treating doctor declares that the employee is permanently unfit to perform the agreed work.

1.3 Can the reintegration process also be started if the employee lives abroad?

Yes. The intended place of habitual employment does not change if the employee resides abroad during his/her incapacity for work. Belgian labour law, including the reintegration procedure for sick employees, therefore remains applicable during the suspension of the employment contract.

1.4 What does the reintegration examination involve?

  1. When the reintegration process is started, the Prevention Advisor-occupational physician ("PAOP"), will inform the advisory doctor of the health insurance fund and invite the employee for a reintegration assessment.
  2. During this assessment, the PAOP will:
    1. Check whether the employee can resume the agreed work, possibly with a workplace adjustment;
    2. Check whether resuming work is feasible given the employee's state of health and capabilities;
    3. Determine under what conditions and modalities the work and/or workplace should be adapted to the employee's current state of health and capabilities.
  3. With the employee's consent, the PAOP may consult the employee's treating doctor, the advisory doctor of the health insurance fund, other prevention advisers and other persons who can contribute to the employee's reintegration. At the employee's request, the PAOP may also consult the employer itself.
  4. If necessary, the PAOP will examine the employee's workplace to see what adjustments, if any, can be made.
  5. The PAOP must prepare a report of the findings. This report will be added to the employee's medical record.

1.5 When should the PAOP decide and what kind of decisions can he make?

The PAOP must notify the employee and the employer of one of the following decisions within a period not exceeding 49 calendar days:

  • A-decision: the employee is temporarily unfit for the agreed work, but other or adapted work is possible. In this case, the PAOP should describe the conditions and modalities under which the work and/or workplace should be adapted to the employee's current state of health and capabilities.
  • B-decision: the employee is permanently unfit for the agreed work, but other or adapted work is possible. Again, the PAOP should describe the conditions and modalities under which the work and/or workplace should be adapted to the employee's current state of health and capabilities.
  • C-decision: for medical reasons, it is impossible to make a reintegration assessment for the time being.

This decision should be kept in the employee's medical record.

1.6 What steps should be taken after receiving the PAOP's decision?

A-decision

  1. After receiving this decision, the employer must:
    1. Seriously examine the concrete possibilities for other or adapted work or for workplace adjustments, considering as far as possible (i) the conditions and modalities described by the PAOP in its reintegration assessment, (ii) the collective reintegration policy applicable within the company and (iii) (if applicable) the reasonable adjustments for persons with disabilities;
    2. Consult the employee, the PAOP and any other persons who may contribute to the employee's reintegration into the company;
    3. Prepare a reintegration plan or a motivational report.
      1. A reintegration plan should include the following aspects:
        1. Period of validity;
        2. Reasonable workplace adjustments (adaptation of machinery, equipment, tools, etc.) and/or;
        3. Adapted work (tasks, volume, schedule, etc. ) and/or
        4. Other work (tasks, volume, schedule, etc.);
        5. Education and/or guidance and those responsible for it.
      2. A motivation report must state that the possibilities of adapting the work or performing other work have been seriously investigated and that (if applicable) reasonable accommodation for persons with disabilities has also been considered, but that this serious investigation shows that it is not technically or objectively possible to draw up a reintegration plan or that it cannot be required for other valid reasons.
    4. Provide the reintegration plan or motivational report to the employee and the PAOP.

The employer must take these steps within 63 calendar days of receiving the reintegration decision.

  1. When a reintegration plan is provided to the employee, the employee then has 14 calendar days to approve or reject the plan. If the employee does not respond within a 14-day period, the employer must attempt to contact the employee again. If, after this new attempt, the employee still has not communicated his/her decision, the employer may assume that the employee has refused the plan. The refused plan must then be handed over to the PAOP.

B-decision

When the PAOP makes this decision, it will communicate to the employee the reasons for this decision and will also inform the employee of the possibility to appeal it. The employee will have 21 calendar days to do so.

After receiving this decision, the employer must therefore take the following steps:

  1. The employer must first wait to see whether the employee will appeal the PAOP's decision;
  2. Where the employee does not appeal or where the decision has been reaffirmed on appeal, the employer must seriously explore the concrete possibilities for other or adapted work or workplace adjustments. We refer to the explanation under decision A in this regard;
  3. The employer must consult the employee, the PAOP and any other persons who can contribute to the employee's reintegration into the company;
  4. Prepare a reintegration plan or motivation report as described under decision A;
  5. Hand over the reintegration plan or motivational report to the employee and to the PAOP.

The employer must take these steps within a six-month period.

When the employer has transmitted a reintegration plan to the employee, the employee has 14 calendar days to approve or reject the plan (same as described under decision A).

C-decision

When the PAOP makes a C-decision, it informs the advisory physician of the health insurance fund of this decision and informs the parties involved that the reintegration process is terminated and can be restarted after a period of 3 months at the earliest (unless the PAOP has reasons to deviate from this deadline).

1.7 When does the reintegration process end?

The reintegration process comes to an end in the following cases:

  • The PAOP made a C- decision;
  • The PAOP made an A- or B-decision and a motivation report was provided to the employee and to the PAOP;
  • ThePAOP made an A- or B-decision and the reintegration plan was refused by the employee. A copy of the rejected plan was provided to the PAOP;
  • The PAOP made an A- or B-decision and the reintegration plan was accepted by the employee. A copy of the adopted plan was provided to the PAOP;
  • The employee failed to accept the PAOP invitation on three occasions. There were at least 14 calendar days between the PAOP invitations each time.

1.8 What if the employee does not cooperate in the reintegration process?

The new legislation stipulates that both the PAOP and the employer must make the necessary efforts to ensure that the invitation reaches the employee. When an employee fails to accept the PAAA's invitation three times, then, the reintegration process comes to an end.

However, this does not mean that the employer cannot take other measures towards the employee concerned. The law still stipulates that the employer and the employee must cooperate in a constructive way throughout the reintegration process. Case law has previously ruled that when an employee repeatedly refuses - without a valid reason - to accept the PAOP's and employer invitations, this can justify dismissal (eventually for urgent reasons).

1.9 Can the employer be criminally prosecuted if the new rules on reintegration are not followed?

Failure to comply with the new reintegration process rules constitutes a breach of welfare regulations punishable through Article 127 of the Social Penal Code. This may result in a criminal fine of EUR 800 to EUR 8,000 (sanction level 3). If the infringement (in this case, non-compliance with the rules on reintegration) resulted in health damage, a prison sentence of 6 months to 3 years and/or a criminal fine of EUR 4,800 to EUR 48,000 (sanction level 4) may be imposed. In case the infringement is committed by a company, the criminal fine is EUR 24,000 to EUR 576,000.

1.10 Have transitional rules been defined?

No. The new reintegration process has applied in full since 1 October 2022.

This has the following implications for ongoing reintegration processes (i.e., reintegration processes that had started before 1 October 2022 and where a decision was made before 1 October 2022):

  • (Old) A-decision: the decision remains valid, but the employer must prepare and submit a reintegration plan or motivational report within 63 calendar days and the employee has 14 calendar days to refuse or accept the proposed plan;
  • (Old) B-decision: the reintegration process is terminated and can be restarted by the employer or the employee;
  • (Old) C-decision: the decision remains valid, but the employer must draw up a reintegration plan or a motivation report within 6 months and the employee has 14 calendar days to refuse or accept the proposed plan. However, this decision cannot give rise to a situation of medical force majeure since 28 November 2022;
  • (Old) D-decision: the decision remains valid; the employee has 21 calendar days to appeal the decision. However, this decision cannot give rise to a situation of medical force majeure since 28 November 2022;
  • (Old) E-decision: the reintegration process is terminated and can be restarted by the employer or the employee.

1.11 Can the employment contract still be terminated for medical force majeure as part of a reintegration process?

No. The legislator chose to completely separate the situation of medical force majeure from the reintegration process. A separate medical force majeure procedure was therefore created (see point 2).

2. The special procedure medical force majeure

2.1 What is the scope?

The new special procedure medical force majeure applies to every employee who has been declared unfit for work for the agreed work by his or her treating doctor. This is regardless of whether the work disability is due to an accident at work or an occupational disease.

2.2 Who can initiate the special procedure medical force majeure and when can it be initiated?

The special procedure medical force majeure can be initiated by the employee himself/herself or by the employer on condition that the employee has been uninterruptedly unfit for work for 9 months. Again, the law provides that this period is not interrupted if there has been a return to work of less than 14 calendar days.

This procedure cannot be started if a reintegration process is in progress.

2.3 How should this procedure be initiated?

The employee or the employer must notify the other party and the PAOP - by registered letter - of their intention to ascertain whether it is permanently impossible for the employee to perform the agreed work.

If it is the employer who initiates the proceedings, the employer must also inform the employee in this registered letter that he/she has the right to:

  • To be assisted throughout the proceedings by someone from the union delegation;
  • Ask the PAOP to explore the possibilities of performing alternative or adapted work.

2.4 How does the procedure proceed after it has started?

  • The PAOP will invite the employee for an assessment by registered mail at the earliest 10 days after receiving the notification.

    If necessary, the PAOP may also conduct an examination of the employee's workplace. If the employee agrees, the PAOP may consult the employee's treating doctor, the advisory doctor of the health insurance fund or the doctor who issued the sick note (if different from the treating doctor).

    On this basis, the PAOP will assess whether or not the employee is permanently unfit for the agreed work. The PAOP must communicate its final decision to the employee and the employer - by registered letter - within a maximum of 3 months of receiving the notification. If the PAOP decides that the employee is definitively unfit for the agreed work, he must also notify the mutual health insurance company's advisory doctor.

    If the PAOP decides that the employee is permanently unfit to perform the agreed work, the PAOP must (i) inform the employee that he has the right to appeal this decision within a period of 21 calendar days and (ii) inform the employer whether or not he has been asked to investigate the possibilities of performing other or adapted work.

  • If the employee has not asked the PAOP to find out whether other or adapted work is possible, the PAOP will inform the employee that he/she has a reflection period of 7 calendar days in which the employee can still ask.

    If, during this reflection period, the employee still requests the PAOP to examine the possibility of other or adapted work, the PAOP will, if necessary, re-invite the employee to examine the terms and modalities of the adapted/other work. In this case, the PAOP must, ultimately within a period of 30 calendar days, communicate these terms and modalities to the employee and to the employer.

2.5 What steps should be taken after the PAOP decides that the employee is permanently unfit for the agreed work and other or adapted work is possible (because the employee has asked for this to be investigated)?

After receiving such a decision, the employer must follow all the steps described in section 1.6.2 (i.e., the steps to be followed in case of a B-decision within the reintegration process).

2.6 When can medical force majeure be invoked?

The end of the employment contract can only be established for medical force majeure if the PAOP has decided that the employee is permanently unfit to perform the agreed work. The following hypotheses must be distinguished:

  • If the employee has not asked to find out whether other or adapted work is possible, the end of the employment contract can only be determined after the 21-calendar-day appeal period has expired and thus the decision has become final or when the decision has been upheld on appeal;
  • Where the employee did ask to explore the possibility of other or adapted work, the end of the employment contract can only be determined for medical force majeure if:
    • The appeal period has expired, or the decision was upheld on appeal AND a statement of reasons was provided to the employee and to the PAOP; or
    • The appeal period expired, or the decision was upheld on appeal and the proposed reintegration plan was refused by the employee. A copy of the refused reintegration plan was provided to the PAOP.

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Originally published 31 January 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.