Introduction
New track to determine medical force majeure
Exemption from submitting medical certificate for first day of illness
Guaranteed salary in cases of partial work resumption


Introduction

On 28 November 2022, three important new measures regarding employee incapacity to work came into force:

  • the already-announced new and enhanced procedure for determining medical force majeure, which is now completely separate from the reintegration track for the reinstatement of sick employees to a company;
  • the exemption for workers from the requirement to submit a medical certificate for the first day of illness, three times a year, in companies with at least 50 workers; and
  • the exemption for employers from the requirement to pay a guaranteed salary when an employee becomes incapacitated again during the first 20 weeks after partially resuming work with the consent of the health insurance fund's advisory doctor.

This article briefly explains each of these new measures.

New track to determine medical force majeure

The previous reintegration track, which was introduced to guide employees who had been ill for a long period to other or adapted work within the company, was often used as a facilitator for a medical force majeure termination.

This is no longer possible. As of 28 November 2022, medical force majeure must be established through a special medical force majeure track, which has been completely separated from the reintegration track. The reintegration track, in turn, has been updated (for further details, see "Re-integration track 2.0: key changes at a glance").

When can the medical force majeure track be initiated?
The medical force majeure procedure may only be initiated:

  • after an employee has been incapacitated for at least nine months; and
  • where no reintegration track is ongoing.

Where an employee resumes working, the nine-month period will be interrupted and the counter will be reset to zero, unless the employee resumes work for fewer than 14 days.

How does this procedure work?
Figure 1 outlines the key steps of the procedure.

‚Äč

Figure 1: medical force majeure procedure

When will termination for medical force majeure be possible?
Termination for medical force majeure will only be possible if:

  • an occupational doctor has decided that the employee is definitively incapable of performing the agreed work;
  • the appeal procedure has been exhausted; and
  • either:
    • the employee did not ask about the possibility of performing adapted or different work;
    • the employee did ask about the possibility of performing adapted or different work, but the employer gave adequate reasons as to why such work was not available; or
    • the employee did ask about the possibility of performing adapted or different work, but refused the alternative work offered by the employer.

If the occupational doctor does not establish that it is definitively impossible for the employee to perform the agreed work, then the medical force majeure procedure is terminated. It can only be restarted if the employee is incapacitated for a new nine-month period.

Exemption from submitting medical certificate for first day of illness

If provided for in the work rules or in a collective bargaining agreement, employees must submit a medical certificate if they become incapable of working for health reasons.

Employees will now be exempted from this obligation three times a year, for the first day of work incapacity. This applies both to absences of one day due to work incapacity and to the first day of a longer absence.

However, the employee must inform the employer at which address they will reside on this first day of incapacity if this address differs from their usual place of residence.

Companies that employ fewer than 50 employees can deviate from this exemption and require a medical certificate for the first day of work incapacity if they explicitly include this deviation in their work rules or in a collective bargaining agreement.

Guaranteed salary in cases of partial work resumption

Where an employee partially resumes work with the consent of the health insurance fund's advisory doctor, the employer will not be obliged to pay a guaranteed salary if the employee becomes incapacitated for work again during the first 20 weeks after resuming work.

However, the employee will be entitled to a guaranteed salary if they become incapacitated for work again after this 20-week period.

For further information on this topic please contact Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email ([email protected]). The ALTIUS website can be accessed at www.altius.com.