Since 1 December 2016, two new royal decrees require that employers follow a specific procedure intended to facilitate the reintegration of employees on long-term disability leave. A new bill clarifies the implications for the employer and the employee of a reintegration plan on the employer's employment contract. This article points out the most important obligations for the employer under the new reintegration procedure.
Until recently, employers in Belgium were not obliged to ensure the reintegration of employees on long-term disability leave. The employee's sole obligation was to prove his or her disability by means of a medical certificate, while the employer was obliged to pay the employee a certain guaranteed salary for a limited period of time.
However, the Royal Decrees of 28 October 2016 and 8 November 2016 (both published in the Belgian State Gazette on 24 November 2016) introduced, effective 1 December 2016, a compulsory reintegration procedure for employees on long-term disability leave who cannot perform their employment contract as agreed. The purpose of this procedure is to determine whether it is possible, on a temporary or permanent basis, to adapt the employee's position or to find other work for the employee within the company.
It should be noted that the new rules do not apply to reintegration in the event of an occupational accident or occupational illness.
The procedure to be followed can be initiated by e.g. the employer, the employee or the consulting physician, albeit at different conditions. Once the procedure has been set in motion, the health and safety officer/company physician will decide whether the employer must draw up a reintegration plan, which must include certain items indicated in the royal decrees. The employer can refuse to draft a reintegration plan if it considers that it is technically or objectively impossible for it to do so or if the request is unreasonable.
If the reintegration plan indicates that it is possible to temporarily or permanently adapt the employee's position or find other work for the employee within the company, there are a number of implications for the employee and the employer.
Status of the employment contract
The bill introduces a rebuttable presumption that the employment contract is unaffected by the introduction of a reintegration plan. Even if an employee, hired on a full-time basis, works only part-time under the plan, his or her full-time employment contract will continue to exist, but the employee is entitled to be paid only for days effectively worked. The same goes for any other benefits to which the employee may be entitled: the employee will receive such benefits on a pro rata basis for days effectively worked.
It is however possible to conclude an addendum to the employment contract for the period covered by the reintegration plan (except when the employee's percentage of disability falls below fifty percent). This addendum can for example set out the work to be performed, the employee's schedule, workload and salary for the adapted job, and the period of validity of the addendum.
It is important to note that the employment contract is not deemed suspended during performance of a reintegration plan. This is very important as it means that if the employer terminates the employment contract with notice during performance of the reintegration plan, the notice period is not suspended and starts to run immediately, unlike with disability leave.
Termination of employees on permanent disability for medical-related force majeure
Termination for medical-related force majeure means that the employment contract of an employee who is permanently unable to perform his or her employment contract is terminated without notice or compensation in lieu thereof.
An employer that wishes to terminate for medical-related force majeure (thus without notice or compensation in lieu thereof) the employment contract of an employee who is permanently unable to perform his or her employment contract can only do so after the end of the reintegration procedure.
Compensation in lieu of notice
An employer that wishes to dismiss an employee with compensation in lieu of notice must pay severance corresponding to the salary which the employee would have received had (s)he been dismissed with notice and allowed to serve out his or her notice period. If an employee on disability leave is currently performing a reintegration plan at the time of his or her dismissal, the severance package is calculated based on the wages and benefits to which the employee was entitled prior to the plan (i.e. before the disability arose). Further, employers should pay attention to the risk of discrimination when terminating employees on disability leave or who have taken such leave.
While these new obligations impose an additional administrative burden on employers, it is hoped that the reintegration procedure and plan (if applicable) will be mutually beneficial to employers and employees: employers can once again rely on the services of their employees, whose reintegration into the work force is facilitated.