Until recently, it was not always clear how to handle the situation of an employee who was declared medically unfit to perform his/her job role by an occupational doctor.
On the one hand, the employee could, by following a specific legal procedure, request re-integration into the workplace in an alternative function for which the occupational doctor had declared him/her medically fit. If possible, the employer was then required to provide adjusted or different work for the employee, in line with their medical capacity as defined by the doctor.
This situation led to many disputes between employers and employees, as the consequent changes to the terms of employment, to adjust to the medical capacity of the employee, were in principle definitive.
On the other hand, no legal provisions existed allowing for termination of employment for medical force majeure.
The Belgian legislator recently took a first step towards resolving these issues, by enacting a royal decree of 28 October 2016.
Under this decree, a new procedure for reintegrating medically disabled employees is implemented, under which it is possible to temporarily adjust an employee's work to suit his/her medical capability, without having to definitively change their employment terms. Any temporary adjustments should be based on the occupational doctor's observations of employee's medical condition, and should be recorded in an addendum to the employee's employment contract.
The decree also introduces a legal presumption by virtue of which the original employment terms (benefits in kind, remuneration, etc.) remain applicable during the adjustment period, unless otherwise agreed in the contract addendum.
This reform is to enable parties to test if an employee can effectively be reintegrated in the workplace, before taking any final decision to reinstate the employee in his/her original role, or to definitively change contract terms, or to terminate the employment.
It is expected that the next step the Belgian legislator will take, either before the end of 2016 or in early 2017, is to officially enact the option to terminate an employee's employment contract for medical force majeure. It is anticipated that this option will be available where an occupational doctor concludes that an employee is medically unfit to perform his/her function and after a reintegration process (above) has been tried. In certain exceptional cases, it may not be necessary for the reintegration procedure to have been followed.