Medical force majeure invoked by the employer: the employee is entitled to outplacement!

As of 29 April 2019, a new outplacement scheme will be added to the existing schemes. It specifically targets employees whose employment contract is terminated because of medical force majeure invoked by the employer.

What exactly does this mean?

Context

As a reminder, until now two outplacement schemes have coexisted:

• the general outplacement scheme for dismissed employees with a notice period of at least 30 weeks;
• the specific outplacement scheme for dismissed employees aged 45 or over.

These two outplacement schemes are intended for dismissed employees. They exclude employees whose employment contract is terminated due to medical force majeure.

From now on, these employees may also benefit from an outplacement scheme, provided that the employer invokes force majeure.

Which employees are concerned?

The new outplacement scheme concerns employees who suffered an incapacity for work resulting from an illness or accident that permanently prevents them from performing the agreed work and whose contract was terminated, in accordance with Article 34, paragraph 1, of the Employment Contract Act of 3 July 1978 for reasons of force majeure, invoked by the employer, upon completion of a reinstatement scheme.

For more information on the termination of the contract for reasons of force majeure, we refer to our Infoflash of 2 January 2017.

What is meant by 'outplacement'?

‘Outplacement’ is understood to mean the entirety of the support services and recommendations adapted to an employee with a health problem, that are commissioned by an employer, and are granted by a service provider, in order to enable an employee to find a job with a new employer within the shortest possible time or to develop a professional activity as a self-employed person.

What does the outplacement offer consist of?

The outplacement offer must meet the same quality criteria as those defined within the framework of the general outplacement scheme and must be tailored to the needs of an employee with a health problem.

It must correspond to a value of € 1,800.

Which procedure must be followed?

Time limits

An employer who invokes force majeure to terminate the employment contract must make an outplacement offer to the employee in writing no later than 15 days after the employment contract was terminated.

The employee then has 4 weeks from the time when the employer makes the offer to accept or reject it in writing. The written document through which the employee gives his consent may only relate to outplacement as such.

Mind that the right to outplacement assistance lapses automatically if the employee does not respond to the employer's offer within this period of 4 weeks.

The medical adviser of the health insurance fund must be informed of the start and content of the outplacement assistance within a period of 15 days after the start of the outplacement assistance, either by the outplacement agency (with the permission of the employee) or by the employee himself. Where applicable, the employee shall discuss the outplacement assistance and its results with the mutual insurance fund's medical adviser during the medico-social examination organised as part of the reinstatement scheme aimed at socio-professional reinstatement (referred to in the Royal Decree of 3 July 1996 implementing the Mandatory healthcare and compensation Act consolidated on 14 July 1994).

Duration

The employee is entitled to outplacement assistance of at least 30 hours over a maximum period of 3 months from the date of acceptance of the offer, unless he has informed the employer that he has found a job with a new employer or developed a professional activity as a self-employed person and does not wish to commence or resume this outplacement. Such notification interrupts the outplacement assistance.

Loss of a new job and commencement or resumption of outplacement

If the employee has notified the employer that he has found a job with a new employer (see above) and then loses that job within 3 months after entering into service, the outplacement assistance can be started or resumed at his request. In case of resumption, it will resume in the phase in which the outplacement programme was interrupted and run for the remaining hours.

In any case, the outplacement assistance shall end at the end of the six-month period following the start date of the procedure.

Exemption from offering outplacement

The employer is exempted from his obligations regarding outplacement if he falls under the application of a collective labour agreement made binding by Royal Decree, organising equivalent assistance for the employee to a new job at the expense of a sectoral subsistence security fund.

Source: Act of 7 April 2019 on the social provisions of the jobs deal, articles 6 to 11, Belgian Official Gazette 19 April 2019.