In order to give employees the opportunity to come back promptly to work after a long term work incapacity, new legislations were adopted. On 1 December 2016, two Royal Decrees relative to the reintegration of employees on long term work incapacity entered into force. In addition, an Act entered into force on 9 January 2017.
Rules applicable to the reintegration program for the same employer
The Royal Decree of 28 October 2016 adds new provisions to the Royal Decree of 28 May 2003 concerning the reintegration of workers in work incapacity. This new decree aims to create a reintegration program for workers who cannot perform the agreed work temporarily or permanently with a crucial role for the prevention adviser-occupational physician. It intends to give the workers the opportunity to perform:
- Temporarily an adapted or different job until the work agreed upon can be resumed
- Permanently an adapted or different job if the worker is definitely incapable to perform the work agreed upon
It is important to highlight that this reintegration program is not applicable in case of work accident or a professional illness.
Who can request this procedure?
According to the new Royal Decree, the prevention adviser-occupational physician can start this reintegration program at the request of:
- The worker during his/her work incapacity (or from his/her personal physician if the employee agrees)
- The medical consultant if he/she is of the opinion that the worker is considered for reintegration
- The employer after four months since the beginning of the work incapacity or as soon as he receives a medical certificate claiming that the worker is in permanent incapacity to perform the agreed job
Workers can start a reintegration program from 1 January 2017 whatever the beginning date of their work incapacity. Employers can start a reintegration program from 1 January 2017 for work incapacity which have begun after 1 January 2016 and from 1 January 2018 for work incapacity which started before 1 January 2016.
- Request from the worker (or his/her personal physician), the medical consultant or the employer
- The prevention adviser-occupational physician warns the employer and/or the medical consultant when he/she received the request of reintegration
- The prevention adviser-occupational physician meets the employee to assess if the worker will be able to perform the agreed job again and the reintegration possibilities
- The prevention adviser-occupational physician has forty days to take one of the following decisions (mentioned on the evaluation form for reintegration):
||Temporarily / definitely incapacity to perform the agreed job?
||Able to perform an adapted / different job for the employee during its incapacity?
|Determine the modalities of the adapted/different work and adaptations required
|Determine when he/she will review the reintegration program
|Determine modalities of adapted/different work and adaptations required
|The worker is incapable to perform an adapted/different job
In general, if the prevention adviser-occupational physician considers that it is not legitimate to start a reintegration program for medical reasons, he/she will reassess this decision every two months.
The worker can appeal the decision if he/she disagrees with the prevention adviser-occupational physician decision.
- The employer establishes a reintegration plan in coordination with the employee, the prevention adviser-occupational physician and all the persons that can be helpful for the success of the reintegration. This plan must contain:
This plan must be given to the employee 55 days after the reception of the reintegration evaluation if it is a temporarily incapacity or 12 months after the reception of the reintegration evaluation if the incapacity to perform the agreed work is definitive.
- A description of reasonable adaptations to the job
- A description of the adapted or different work (work volume, schedule and progressivity of measures if any)
- The nature of the proposed training to acquire competences for the adapted or different work
- The duration of validity of the reintegration plan
If the employer does not establish a reintegration plan -because he assesses, after the above mentioned consultation, that it is technically or objectively impossible or because there are justified reasons to refuse to implement such a plan- he needs to justify his decision in a report addressed to the worker and the prevention adviser-occupational physician.
The worker has five days to agree or disagree with the reintegration plan.
- The employer gives the worker and the prevention adviser-occupational physician a copy of the reintegration plan.
It is important to note that at any stage of this procedure the worker can be assisted by a worker representative or otherwise by an union representative.
End of reintegration program for workers in permanent incapacity
The reintegration program is definitely terminated for workers in permanent incapacity to perform the agreed job when the employer receives:
- The above mentioned evaluation form for reintegration in which the prevention adviser-occupational physician decided that there is no adapted or different work possible (and no possibilities of appeal remain)
- The employer reported to the prevention adviser-occupational physician that it is technically or objectively impossible or because there are justified reasons to refuse to implement a reintegration plan
- The employer gave to the prevention adviser-occupational physician the reintegration plan but the employee does not agree with the plan.
At least once a year the employer must consult the committee regarding possibilities (at collective level) of adapted or different work and measures to adapt functions. This must be done in presence of the prevention adviser-occupational physician and if any other competent prevention advisers.
In addition, the employer bears transportation costs of the worker linked to the reintegration program.
Rules applicable to the reintegration program for another employer or within another sector
A second Royal Decree of 8 November 2016 intends to promote the socio-professional reintegration of employees on long term work incapacity who can no longer work for their employer. This system aims to help them to find a job for another employer or within another sector.
New rules concerning the employment contract during the reintegration program
The new legislation which entered into force on 9 January 2017 intends to secure from a legal point of view the working relationship during the exercise of an adapted or different work as seen above. This Act introduced new rules about the execution of the employment contract, the indemnity in lieu of notice, the payment of the wage and the dismissal of the worker.
Execution of the original employment contract
During the period in which the worker is performing an adapted or different work than the one agreed initially, the employment contract will remain the same without any suspension. There is also a rebuttable presumption that the initial contract was maintained. That means that all the advantages will remain the same. However, it is still possible to make an amendment in this regard.
Compensation in lieu of notice
During the period in which the worker is performing an adapted or different work than the one agreed initially, the compensation in lieu of notice must be calculated based on the remuneration due following the initial employment contract.
Payment of the wage
When the worker is performing a reintegration program, the employer does not have the obligation anymore to pay the guaranteed salary in case of illness or accident during this period.
Termination of the employment contract due to force majeure
Since the adoption of this Act, it will only be possible for an employer to dismiss a worker in permanent incapacity after the end of the reintegration program. The different reasons leading to the end of this program are mentioned above ("End of reintegration program for workers in permanent incapacity"). As mentioned, it will be only possible to dismiss a worker if it is impossible to adapt his/ her work and there are no possibilities to appeal the decision anymore.