Contract termination for reasons of medical force majeure: the procedure enters in force

The law of 30 October 2022 containing various provisions on incapacity for work amends Article 34 of the Employment Contract Act in terms of contract termination for reasons of medical force majeure.

The specific contract termination procedure enters into force on 28 November 2022.

Reminder

In order to focus on the reintegration of workers and to adopt a positive approach to this, a Royal Decree of 11 September 2022 modified the reintegration procedure and introduced a dissociation between the worker’s reintegration pathway and termination for reasons of medical force majeure.

The new reintegration procedure entered into force on 1 October 2022.

Please refer to our Infoflash of 30 September 2022 for more information on this subject.

Conditions for starting the procedure for contract termination for reasons of medical force majeure?

1. The worker must have been unable to work for an uninterrupted period of at least 9 months; the 9-month period is not interrupted in the event of a new incapacity occurring within 14 days of a return to work;
2. No reintegration pathway within the meaning of the codex on well-being must be in progress for the worker.

Start of the procedure

The procedure begins by the worker or employer sending a notification by registered letter to the other party and the prevention adviser-occupational physician. The aim is to notify them of the intention to determine whether the worker is permanently unable to perform the agreed work.

If the notification is made by the employer, it must mention that the worker is entitled to ask the prevention adviser-occupational physician that the possibilities of adapted work or other work be examined if it has been observed that he/she is permanently unable to perform the agreed work.

Specific procedure provided for in the codex on well-being

1. Invitation: The prevention adviser-occupational physician invites the worker for an examination which must take place at the earliest ten calendar days after the notification. The worker can be assisted by a trade union representative during the procedure.

If the worker does not respond to this invitation three times within a three-month period with an interval of at least fourteen calendar days between each invitation, the prevention adviser-occupational physician will inform the employer.

2. Examination: during the examination, the prevention adviser-occupational physician may consult the worker’s GP and/or the health insurance fund's medical adviser. The aim of the examination is to determine whether the worker is permanently unable to perform the agreed work.

If this is the case, the finding is attached to the worker’s medical file.

During this examination, if it is observed that the worker is permanently unable to perform the agreed work, the worker can ask the prevention adviser-occupational physician in writing to examine the possibilities for adapted work or other work. If this is the case, the prevention adviser-occupational physician will take the necessary steps to determine whether adapted work or other work is possible.

3. Communicating the findings: the prevention adviser-occupational physician communicates his findings to the employer and the worker by registered letter as soon as possible and by the latest within three months of receiving the notification.

If he deems that it is impossible for the worker to perform the agreed work, he must also communicate his findings to the health insurance fund's medical adviser.

Please note that the worker has the possibility to appeal against these findings within a period of 21 calendar days.

In his findings, the prevention adviser-occupational physician indicates whether the worker has asked to examine the possibilities for adapted work or for other work and, if applicable, the terms and conditions for the adapted work or other work.

If, during the examination, the worker has not asked to examine the possibilities for adapted work or other work, he/she can still, within seven calendar days of receiving the findings, indicate that he/she wishes the conditions for adapted work or other work to be examined all the same.

Contract termination for reasons of medical force majeure

The employment contract can only be terminated for reasons of medical force majeure when it appears from the prevention adviser-occupational physician’s findings, which are no longer eligible for appeal (i.e. after expiry of a 21-calendar-day period of appeal), that:

1. It is permanently impossible for the worker to perform the agreed work;
2. And that:

• Either the worker has not asked to examine the possibilities for adapted work or other work;
• Or the worker has asked to examine the possibilities for adapted work or other work but the employer has given the worker and the prevention adviser-occupational physician a report with reasons explaining that adapted work or other work is technically or objectively impossible or cannot be required for duly justified reasons;
• Or the worker has asked the employer to examine the possibilities for adapted work or other work and the employer has provided a plan for adapted work or other work but the worker has refused this plan.

If the prevention adviser-occupational physician has not observed that it is permanently impossible for the worker to carry out the agreed work, the procedure will end. A new procedure can only be started at the worker or employer's initiative at the end of a new period of nine months’ uninterrupted incapacity.  

Sources: Royal Decree of 11 September 2022 amending the codex on well-being at work regarding the reintegration pathway for workers who are incapacitated for work, Belgian Official Gazette of 20 September 2022; Law of 30 October 2022 containing various provisions on incapacity for work, Belgian Official Gazette of 18 November 2022.