The reintegration of long-term sick persons

These procedures became effective as from 1 December 2016.

In this way, the government sets the pace for the reintegration of long-term sick persons within the company where they are employed, as well as in the labour market in general.

The measures aim at guiding the long-term sick persons towards a temporary or permanent adapted job or to another job.

For this purpose, a reintegration path for long-term sick persons has been worked out at two levels, i.e.:

• the reintegration of the long-term sick employee in the company of the employer, with whom he has entered into an employment contract;
• the reintegration in the labour market in general of long-term sick persons without an employment relationship.

The new regulation concerning the reintegration of the long-term sick person in the company will be scrutinized below.

The reintegration procedure of long-term sick employees in the labour market in general will be examined in a next edition.

1. A tailor-made reintegration path of the long-term sick person in his company

The new regulation provides for a tailor-made reintegration course for the long-term sick employees aiming at guiding the long-term sick employee towards (i) a temporary or (ii) a definitive adapted job or (iii) another job with his employer, with whom he has entered into an employment contract.

The goal to achieve (the adapted or new job) as well as the course to be followed to achieve that goal is outlined for each worker separately.

The regulation does not apply in the case of a work accident or professional disease.

2. A crucial role for the prevention adviser-labour doctor

The prevention adviser-labour doctor has a crucial role in the reintegration path of the long-term sick employee within the company.

The request to start a procedure is filed with him and he determines whether or not starting up a procedure is meaningful and, if so, what the possibilities and the goals are.

The employer is obliged to consult with him with respect to the establishment of the reintegration plan and the prevention adviser-labour doctor is in charge of the follow-up of the implementation of the plan.

He is also the one who keeps contact with all the persons concerned (the employee, the employer, the treating doctor and the doctor-adviser of the health care service) and keeps them updated on the progress of the procedure.

3. The reintegration procedure of the long-term sick employee proceeds in several phases

3.1. The request to start up a reintegration path

The process for reintegration within the company can be started at the request of :

• the employee during his incapacity to work or his treating doctor, subject to his consent;
• the doctor-adviser of the health care service, if he considers the employee to qualify for reintegration pursuant to the law concerning obligatory insurance covering medical care and allowances, coordinated on 14 July 1994;
• the employer, at the earliest 4 months following the beginning of the incapacity to work of the employee, or as from receipt of the certificate of the treating doctor stating the definitive incapacity of the employee to perform the agreed upon work. In this case, a transitional measure has to be taken into consideration: if the incapacity to work started prior to 1 January 2016, the employer can start up the reintegration procedure only as from 1 January 2018.

The request has to be filed with the prevention adviser-labour doctor.

3.2. The reintegration assessment by the prevention adviser-labour doctor

The prevention adviser-labour doctor consults with the employee and – as the case may be and subject to the consent of the employee – with other persons, such as the treating doctor, the doctor-adviser of the health care service or other persons, who might contribute to the success of the reintegration.

He examines the work place and the work environment of the employee in order to assess the possibilities of adapting the work place.

The prevention adviser-labour doctor then takes one of the following decisions:

• the employee may eventually be able to carry actually out the agreed work, possibly subject to adaptations of the work place, and meanwhile the employee is capable of performing adapted work or another job.
  The prevention adviser-labour doctor determines the terms and conditions and reconsiders the procedure at the time as he sees fit.
• the employee may eventually be able to carry out the agreed work, possibly subject to adaptations of the work place but meanwhile he is not capable of performing adapted work or another job.
  The prevention adviser-labour doctor reconsiders the procedure at the time as he sees fit.
• the employee is definitely incapable to resume the agreed upon work but he is apt to perform adapted work or another job, possibly subject to adaptations of the work place.
  The prevention adviser-labour doctor determines the terms and conditions.
• the employee is definitely incapable to perform the agreed upon work and he is not fit either to perform an adapted work or another job for the employer.
• it is not appropriate to start a reintegration procedure.
  Every two months the prevention adviser-labour doctor re-assesses the possibilities to start up a reintegration procedure.
  This option is excluded if the request to start up a reintegration process has been filed by the doctor-adviser of the health care service.

The employee can file an appeal against the decision of the prevention adviser-labour doctor holding him definitely incapable to perform the agreed upon work.

The appeal must be filed within 7 working days by registered mail sent to the doctor social inspector of the General Administration Surveillance of the Wellbeing at work.

3.3. The employer establishes the reintegration plan

The employer establishes the reintegration plan after consulting with the employee, the prevention adviser-labour doctor and, possibly, other persons who can make a useful contribution to the reintegration process.

The reintegration plan includes one or several of the following concrete and detailed measures:

• a description of the reasonable adaptations of the work place;
• a description of the adapted work, including the volume of the work, the work time schedule and, as the case may be, the progressiveness of the measures;
• a description of the other work, including the contents, the volume of the work, the work time schedule and, as the case may be, the progressiveness of the measures;
• the nature of the training, as suggested, in order for the employee to acquire the competences, which should allow him to perform the adapted work or another job;
• the duration of the plan.

The employer submits the reintegration plan to the employee:

• within 55 working days after receipt of the reintegration assessment when the prevention adviser-labour doctor proposes  temporary adaptation(s) or a temporary other job;
• within a period of maximum 12 months after receipt of the reintegration assessment, when the prevention adviser-labour doctor proposes either a permanent adaptation or a permanent other job.

The employer, who considers it technically or objectively impossible or reasonably impossible on founded grounds to establish a reintegration plan, states the reasons thereof in a report, which he submits to the employee and the prevention adviser-labour doctor.

3.4. Agreement of the employee

Within 5 working days following receipt of the reintegration plan, the employee must decide whether or not he accepts the reintegration plan.

If he does, he signs the plan and returns it to the employer.

If he does not, he returns the reintegration plan to the employer with a statement of the reasons why he does not accept the plan.

3.5. End of the reintegration procedure

The reintegration procedure is terminated when:

• the prevention adviser-labour doctor considers the employee definitely incapable to perform the agreed upon work and that no adapted or other work is possible (after expiration of the appeal term of 7 working days or, as the case may be, confirmation of the decision in the case of an appeal of the employee);
• the employer submits the report to the prevention adviser-labour doctor, stating the reasons why it is technically or objectively or on the basis of founded grounds impossible to establish a reintegration plan;
• the employee does not accept the integration plan and this has been communicated to the prevention adviser-labour doctor.

4. Termination of the employment contract based on force majeure

Force majeure (by way of example, definite and complete incapacity to perform work) has always been included in the law of 3 July 1978 relating to employment contracts as a basis of termination of the employment contract.

However, it is very difficult to invoke termination of an employment contract on the basis of force majeure, simply because it is almost impossible to submit evidence of such definite and complete incapacity to perform work.

The law of 17 July 1985 introduced stipulations on the subject into the law of 3 July 1978, but this law never became effective.

This uncertainty has now been resolved.

The new article 34 of the law of 3 July 1978 stipulates that the definite incapacity to perform the agreed upon work due to illness or accident can be invoked as force majeure only after the final termination of the reintegration procedure.

5. The terms and conditions of employment applicable during the period of performance of the adapted work or another job

In principle, the employee maintains the acquired benefits and advantages during the period of performance of the adapted work or the other work.

Nevertheless, the employer and employee may agree in an annexe to the employment contract on derogating arrangements relating to the volume, the work time schedule and the nature of the other or adapted work and the salary for the alternative or adapted work.

In case of termination of the employment contract in the course of the period of performance of the other or adapted work, the severance pay is calculated on the basis of the annual remuneration, the employee would have been entitled to on the basis of the employment contract, if he had not adapted his work.

In the case of incapacity to work due to illness or accident in the course of the period of performance of the other or adapted work, the employer is not liable for payment of the guaranteed salary.

6. The role of the committee prevention and protection at work

In view of developing an efficient reintegration policy, the employer consults on a regular basis, and at least once a year, with the committee prevention and protection at work on the possibilities – at a general level – with respect to adapted or other work and the measures to adapt the work places, and this in the presence of the prevention adviser-labour doctor and, as the case may be, other qualified prevention advisers.

The collective aspects of the reintegration are assessed once a year and a consultation is organized within the committee on the basis of a quantative and qualitative report of the prevention adviser-labour doctor. If required, the reintegration policy is adapted taking into consideration of this report.