Medical force majeure: when reintegration is no longer possible

What is medical force majeure?

Medical force majeure means that your employee is permanently unable to do their job any more, and that there are no other reintegration options within your organisation. In these circumstances, you can terminate the employment contract without notice or severance pay. This is done through a specific procedure (Article 34 of the employment contracts law).

Note: this procedure is intended as a last resort. You should only use it if you have explored all other options for a return to work.

When can you initiate the medical force majeure procedure?

There are two conditions: 

1. Your employee has been unfit for work for an uninterrupted period of at least nine months 

2. A reintegration process is not (or no longer) in progress for this employee 

Bear in mind that if your employee does return to work, but only for 14 days or less, this is not regarded as constituting a break in sick leave: the law is designed to give reintegration attempts every possibility of succeeding.

Who initiates the medical force majeure procedure?

Either you as the employer or the employee can initiate the process. You do this by sending a registered letter to the other party and to the occupational physician. Feel free to use the documents below.

As the employer, you must clearly state that:

• Your employee has the right to ask the occupational physician about the possibilities for adapted work.

• Your employee may seek assistance from the trade union.

What does the occupational physician do?

Ten days after the request at the earliest, the occupational physician may investigate whether your employee is permanently unfit for the job in question. If your employee gives permission, the occupational physician may contact the employee’s doctor (general practitioner or specialist) and/or the health insurance fund’s medical advisor for further information.

The occupational physician has three months to send a decision by registered letter to all parties involved. After that, various scenarios are possible, and in every case your employee can always appeal.

Possible scenarios

Scenario 1: permanently unfit, without request for adapted work

• Your employee can appeal within 21 days (by registered letter to the inspectorate and to you as the employer). 
  
  

• If no appeal has been submitted, or the decision is upheld after the appeal, you may terminate the employment contract.
  
   

• The employee can still request an examination of the possibility of adapted work within seven days (by registered letter). The occupational physician then has 30 calendar days to inform you and your employee of the results. If your employee wants to take up these possibilities, Scenario 2 begins. 
  

Scenario 2: permanently unfit, with request for adapted work

• The occupational physician determines the conditions for adapted work.
  
  

• As an employer:

  • you offer your employee adapted work (by means of a reintegration plan), or

  • you explain why this is not possible (by means of a report).
    
    

• Your employee can appeal within 21 days (by registered letter to the inspectorate and to you as the employer).
  
  

• If your employee rejects the proposal, or adapted work isn’t possible and the appeal period has expired, you may terminate the employment contract.

Scenario 3: not permanently unfit

• The procedure ends without any consequences.
  
  

• Your employee can still initiate a reintegration process.
  
  

• You cannot initiate a new medical force majeure procedure for nine months after receiving the occupational physician’s decision.

Scenario 4: the employee fails to appear for the medical checkup

• The occupational physician may invite your employee a maximum of three times, with at least 14 days between each invitation.
  
  

• If your employee fails to appear three times, the procedure will be terminated. The occupational physician will notify you and may not make any decision on unfitness in this situation.
  
  

• You cannot initiate a new medical force majeure procedure until nine months later (counting from the day you received the occupational physician’s decision).