The reinstatement scheme for disabled workers: finally a reality!

One of the governmental measures meant to encourage the reinstatement of workers who are incapable to work has recently been published in the Belgian National Gazette. This measure regards the reinstatement scheme in the company.

What is it about?

The reinstatement scheme is aimed at promoting, with the assistance of the prevention adviser-occupational health officer, the reinstatement of the worker who can no longer perform the agreed work, by offering him an adapted or another work:

• either temporarily, until he will be able to perform his normal work again,
• or permanently, when he is permanently incapable to perform his normal work.

Procedure

A procedure involving mainly the worker, the employer and the prevention adviser-occupational health officer must be followed and specific deadlines must be observed. In this Infoflash we will only discuss the essential steps.

Initiative

The reinstatement scheme can be applied for to the prevention adviser-occupational health officer:

• either by the worker during the period of incapacity (or, if he agrees, by his GP),
• or by the employer, at the earliest 4 months after the beginning of the worker's incapacity or the time when the worker provides him with a certificate of his GP proving his permanent incapacity to perform the agreed work,
• or, in clearly defined cases, by the health insurance fund's medical adviser.

Evaluation of the reinstatement

The prevention adviser-occupational health officer invites the worker for whom he has received a reinstatement request to evaluate the reinstatement. The aim is to examine whether the worker will be able to perform his normal work again in the future (some adjustments to the workstation can be envisaged). It will also be examined which are the possible reinstatement schemes based on the worker's ability.

At the end of the evaluation of the reinstatement, the prevention adviser-occupational health officer writes down his decision on the reinstatement evaluation form. His decision can be:

1. either a resumption of the agreed work in the future (possibly some arrangements to the work station must be made) and in the meantime the worker is able to perform an adapted or another work (possibly some adjustments to the workstation must be made);

2. or a resumption of the agreed work in the future (possibly some arrangements to the work station must be made) and in the meantime the worker is unable to perform an adapted or another work;

3. or a permanent incapacity to resume the agreed work and the worker is able to perform an adapted or another work with the employer;

4. or a permanent incapacity to resume the agreed work agreed and the worker is unable to perform an adapted or another work with the employer;

5. or an 'inappropriateness' to start a reinstatement scheme due to medical reasons.

The prevention adviser-occupational health officer then sends the reinstatement evaluation form to the employer and the worker.

Note! The worker who disagrees with the reinstatement evaluation by which the prevention adviser-occupational health officer declares the worker permanently incapable to perform the agreed work (decisions 3. and 4. above), can lodge an appeal (with the doctor-social inspector of the General Directorate for the Supervision of Well-being at Work) within a period of 7 working days after the delivery of the reinstatement evaluation form.

Reinstatement plan

The employer draws up a reinstatement plan (in consultation with the worker and the prevention adviser-occupational health officer) in the following two hypotheses:

• after having received the reinstatement evaluation form, in the case of a temporary inability referred to in point 1. above;
• after expiration of the term of appeal or after having received the result of the appeal procedure confirming the decision of the prevention adviser-occupational health officer, in the case of a permanent inability referred to in point 3. above.

The reinstatement plan must include one or more of the following measures: a description of the reasonable adjustments to the workstation, a description of the adapted work, a description of 'another work', the nature of training that may be required to perform an adapted work or another work as well as the period of validity of the reinstatement plan.

Note! If the employer believes that the establishment of a reinstatement plan is technically or objectively impossible or that it may cannot be demanded for duly justified reasons, he submits a report in that sense to the worker and the prevention adviser-occupational health officer.

If the worker agrees to the reinstatement plan sent by the employer, he must sign it for approval. If he disagrees he must state the reasons of his refusal.

Entry into force

The date on which a reinstatement scheme can start, depends on the person who has taken the initiative:

• if the initiative comes from the worker: from 1 January 2017 (regardless of the date of the beginning of his incapacity);

• if the initiative comes from the employer: from 1 January 2017 for incapacities starting as from 1 January 2016, and from 1 January 2018 for incapacities that have started before before 1 January 2016.

Last remarks!

1. A royal decree of 8 November 2016 of which the date of entry into force is set at 1 December 2016 specifies in particular the role of the health insurance fund's medical adviser in the procedure with regard to the reinstatement scheme (as explained in this Infoflash).

2. A draft law prescribes that in the case of permanent incapacity of the worker the employment contract can only be ended due to force majeure if the worker has completed a reinstatement scheme (as explained in this Infoflash). We will return in detail to this new measure after its publication in the Belgian Official Gazette.

Sources: Royal Decree of 28 October 2016 amending the Royal Decree of 28 May 2003 relating to the monitoring of the health of workers with regard to the reinstatement of workers unable to work, Belgian Official Gazette 24 November 2016; Royal Decree of 8 November 2016 amending the Royal Decree of 3 July 1996 implementing the law on the compulsory health-care insurance and allowances coordinated on 14 July 1994 as regards the socio-professional reinstatement, Belgian Official Gazette 24 November 2016; draft law containing various provisions in employment law related to the incapacity to work.

Author: Catherine Legardien

02/12/2016