All employers have at one point or another been confronted with the long-term illness of an employee and the difficulty of organizing either the resumption of work or the termination of the contract for medical force majeure. The proliferation of legal provisions against discrimination, in particular for the state of health, complicates the situation further and entails a risk of condemnation for an abusive termination of the employment contract.
The aim of the new legislation “reintegration journey for workers with long-term disability“, adopted in November 2016, is to encourage the resumption of activity of workers who have been ill for a long time but who have retained certain residual capacities by granting them access to jobs in adequacy with their handicap or illness. In practice, this reintegration path consists essentially in an individualized evaluation of the worker, led by the prevention counselor/occupational physician. It can be implemented at the request of the worker, the medical advisor of the health insurance, or the employer (but only 4 months after the onset of the work incapacity).
The evaluation is meant to determine whether the worker can eventually (i) return to work, if necessary after an adjustment of his/her workplace, (ii) can perform other work for the same employer, possibly temporarily, or (iii) has become permanently unfit.
This process has become a compulsory passageway, since a new section 34 of the Employment Contracts Act of 1978 now provides that any incapacity which permanently prevents the worker from performing the tasks for which he was engaged cannot lead to the end to the contract of employment on account of force majeure until the worker hasn’t fulfilled this reintegration journey. This Article entered into force on 9 January, 2017.
It should be noted, however, that if workers are entitled to apply for the reinstatement journey since 1 January 2017, irrespective of the date on which their disability began, employers will only have this possibility provided that the disability has started after January 1, 2016. For all disabilities originating prior to January 1, 2016, they will have to wait until January 1, 2018.
If you wish to have more information on this topic, please contact M Carl VANDER ESPT (firstname.lastname@example.org).
The Cairn Legal team.
Partners Frédéric de Patoul | Pierre Philippe Harmel | Frank Weinand | Didier Chaval | Bernard Vandenkerckhove | Carl Vander Espt | Arnaud Massart | Guillaume Rue | Jonas Deryckere
Associates Dorothée Cardon de Lichtbuer | Julie Docquier | Virginie Schoonheyt | Lauriane Vasquez | Bojana Salovic | Tina Hendriks