Separation of reintegration and medical force majeure procedures
The focus of this reform is the separation of the reintegration trajectory from the procedure for medical force majeure. Until now, medical force majeure was one of the possible outcomes of a reintegration trajectory. The legislator wanted to treat both cases separately to ensure that the focus of a reintegration trajectory would be solely on reintegration, which would be a more positive approach because reintegration trajectories could then no longer be applied with the intention of terminating due to medical force majeure.
The medical force majeure procedure will thus become a separate procedure, which can only be initiated after 9 months of incapacity for work and insofar as no reintegration trajectory is ongoing. If the prevention advisor-occupational physician establishes that there is no permanent incapacity to perform the agreed work, the procedure remains without effect. If he does establish such unsuitability, the procedure may be terminated on grounds of medical force majeure if 1) the employee does not request (an investigation into) adapted or other work 2) there has been such a request, but the employer cannot offer adapted or other work (which will be substantiated in a report) or 3) the employer has offered such work, but the employee has refused it.
Greater employee involvement and guidance in the reintegration process
In addition to the separation of the two procedures, there are also some new elements to create awareness for the employee to be supported during the incapacity for work. For example, the prevention advisor-occupational physician will now be obliged to contact the incapacitated employee as soon as possible to inform them about, among other things, the possibility of starting the reintegration procedure. In addition, the employer will have to regularly remind the employee that he is entitled to assistance from a workers' representative. The role of the CPBW/CPPT will also be strengthened.
Passive attitude of the employee?
The legislator also wanted to provide an answer to a common problem, namely the situation where the employee is passive and uncooperative in the course of proceedings. The question arose in the past whether there could then be an urgent cause. The RD of 11 September 2022 now contains specific sanctions and links concrete consequences to the employee's attitude. For example, the reintegration trajectory is considered terminated if the employee was invited to an examination 3 times but does not respond. If, after receiving the reintegration plan, an employee does not respond, the employer must give him a formal notice. If the employee still does not respond, this is considered a refusal of the reintegration plan.
Under the medical force majeure procedure, there is less clarity. In that case, too, the prevention advisor-labour physician must invite the employee 3 times for an examination. If the employee does not accept the invitation, the prevention advisor-labour physician must inform the employer. What are the further consequences of the employee's passive attitude is as of now unclear. This does not lead to a clear sanction, but based on case law from the past, a dismissal for cause may be justified.
Other news on incapacity for work
Besides regulations related to the reintegration trajectory and medical force majeure, there are also plans to amend other rules on incapacity for work. For instance, a draft bill provides for an exemption from the obligation to submit a medical certificate. This exemption would apply to 1 day of incapacity for work each time, with a maximum of 3 exemptions per calendar year. SMEs, i.e. companies with fewer than 50 employees, can derogate from this through a collective labour agreement or through the labour regulations. The idea is that the impact of unexpected absences is greater for SMEs than for non-SMEs. This measure would be introduced to reduce the administrative burden of general practitioners, but also to combat short-term absenteeism.
In addition, the same draft bill also contains a new rule for workers who partially resume work but become incapacitated again during this period of work resumption. Currently, a worker loses his right to guaranteed pay in such a case. The new draft bill states that the neutralisation of this guaranteed pay will be limited in time, specifically to 20 weeks from the start of the partial resumption of work.
If the worker becomes disabled again after the 20-week period, guaranteed pay will still be due.
If you still have questions about the (proposed) changes and their impact on your HR policy, please do not hesitate to contact one of the colleagues in the Employment and Benefits team. We will be happy to help you!