Resumption of adapted work/other work: impact on labour law

The impact on the employment contract of a temporary resumption of adapted work or other work, authorised by the medical officer of the health insurance fund, is now governed by law.

The law of 20 December 2016 on the various provisions of labour law related to incapacity for work, published in the Belgian Official Gazette of 30 December 2016 and which enters into force on 9 January 2017, introduces several provisions that affect the law of 3 July 1978 on employment contracts.

The measure is one of the government's measures aiming to encourage the reintegration of workers who are incapacitated to work.

The law of 20 December 2016 on the various provisions of labour law related to incapacity for work also provides the rules for breach of contract in the event of force majeure if the employee is declared unfit for work. Read our Infoflash of 2 December 2017 on this subject.

What is 'authorised resumption of work' exactly?

To stimulate the reintegration of an employee who is incapacitated to work, the latter may, with the authorisation of the employer and with the authorisation of the medical officer of the health insurance fund, temporarily resume adapted work or other work while keeping the incapacity for work benefits paid by the health insurance fund; these benefits may, within certain limits, be accumulated with the salary received for the employment activity.

In practice this means that an employee who temporarily wishes to resume adapted work or other work following a full-time period of incapacity to work must, in principle at the latest on the business day immediately preceding the resumption of work, notify the health insurance fund of this work resumption and apply for authorisation from the medical officer of his health insurance fund.

Note that from 1st January 2017, the employee must submit this application for the authorisation assuming that the health & safety officer of the employer has sent to the medical officer of the health insurance fund a copy of the reintegration plan that the employer has developed for the reintegration programme (read our Infoflash of 2 December 2016 for more information on this subject).

The medical officer of his health insurance fund shall check whether the conditions for the authorised resumption of adapted work or other work are fulfilled, based on the authorisation application submitted by the employee or the reintegration plan.

What about the employment contract in the event of authorised work resumption?

The law of 20 December 2016 on the various labour law provisions related to incapacity for work now sets out the impact of a temporary resumption of adapted work or other work, authorised by the medical officer of the health insurance fund, on the employment contract. These provisions confirm most of the principles currently in force.

Note: The rules explained below only concern the temporary resumption of adapted work or other work with the authorisation of the medical officer of the health insurance fund.

The employment contract is not suspended

The performance of the employment contract is not suspended during the period of the authorised resumption of adapted work or other work.

This mainly means that a notice period before/during a period of authorised resumption of adapted work or other work takes effect/proceeds normally.

The "work relationship" in force before the resumption of work is maintained.

The "work relationship" in force before the resumption of adapted work or other work is presumed to be maintained.

This means that, for example, an employee who is initially employed with a full-time contract and reduces his performance of work in the context of adapted work or other work is not considered as a part-time employee, in particular with regard to the working time regulations.

This presumption has a refutable character. It can be reversed if the parties demonstrate they are willing to modify the initial work relationship indefinitely.

The acquired benefits are maintained

During the period of authorised resumption of adapted work or other work, the employee preserves the benefits he has acquired with the current employer. The parties may derogate from this principle (with a rider to the employment contract – see below).

The parties may conclude a rider to the contract

For the period of the authorised resumption of adapted work or other work, the employee and the employer may (without obligation) conclude a rider to the employment contract. This rider contains, where applicable, the modalities agreed for the adapted work or other work, namely:

• the amount of work,
• the work schedule,
• the type of work,
• the remuneration,
• the term of the rider

The rider ends immediately when the employee no longer meets the conditions of the authorised work resumption. The employee must inform his employer as soon as he no longer fulfils these conditions.

Severance pay is calculated on the basis of the initial remuneration

If the employment contract is terminated during a period of authorised resumption of adapted work or other work, with payment of severance pay, the remuneration to be taken into account for the calculation of this severance pay is the remuneration that the employee would have been entitled to under his unmodified employment contract as agreed with the employer.

The guaranteed salary is neutralised

In the event of sickness (other than an occupational disease) or of an accident (other than an accident at work) during the period of the resumption of adapted work or other work, the employer does not have to pay any remuneration.

Date of entry into force

These provisions enter into force on 9 January 2016.

Source: The law of 20 December 2016 on the various provisions of labour law related to incapacity for work, published in the Belgian Official Gazette of 30 December 2016.

Author: Catherine Legardien

02/01/2017