Opinion: “Reintegration cannot camouflage dismissal for medical reason”
Is it true to say that employers don’t bother to provide adapted work for employees on long-term sick leave? And that they take advantage of the reintegration legislation to dismiss employees without a severance payment? No, according to Marie-Noëlle Schmickler, Director of Medical Research and R&D at Mensura, the figures tell a whole other story.
Workers on long-term sick leave should have the opportunity to get back to work as soon as this is medically justified. There is no denying the positive effect of work compared to the isolation imposed by illness. And yet, the debate as to whether reintegration processes are not just a pretext for dismissal regularly flares up.
Do the social partners who claim that have it wrong? For the most part, they do, and for different reasons. The large number of ‘decisions d’ (i.e. an employee has been found permanently unfit to carry out the agreed work and cannot perform any other or adapted work at the same employer) – still 59% in 2017 according to Mensura figures – is not conclusive evidence of complacency or unwillingness on the part of employers.
For example, an employer can only rely on medical force majeure if specific conditions are met. First, a prevention advisor - occupational health physician (PA-OHP) must have declared the employee unfit for the agreed work. Furthermore, it must be impossible for the employer to offer adapted or other work, and the employee must not have challenged the PA-OHP’s decision.
Alternative medical exams
It is, however, in the figures regarding alternative medical exams to get employees back to work – such as the preliminary medical exam before the resumption of work and the return-to-work medical exam – that we find the most nuance. In both cases, the PA-OHP assesses whether the employee is fit to resume his/her job, whether or not subject to (temporary) changes to the workstation or work schedule.
The difference? The preliminary medical exam before the resumption of work takes place at the employee’s initiative and is not a mandatory consultation. The findings – for example progressive work resumption – are not enforceable and the employee chooses whether to inform his/her employer of the medical exam. The return-to-work medical exam is compulsory for employees who must undergo a medical examination, i.e. from four weeks of illness.
A rise in reintegration
If we look at the figures from the work resumption studies in the 2010 to 2016 period, the ‘fitness to resume work’ findings fluctuate between 86 and 91%. The figures for temporary adapted work are about the same: from 81% in 2010, rising to 94% in 2016. ‘Definitively unfit’ drops in the same period from 19% (2010) to 6% (2016).
The number of visits prior to the resumption of work has quadrupled in the 2010-2017 period. Three out of four employees were then judged fit to resume work without adjustments. One in five were able to return to work, provided temporary or final adjustments were made to their workstation. And only 1% of workers were eventually deemed unfit.
A shared responsibility
Is reintegration a step towards dismissal? See for yourself. The views expressed in the current debate lack nuance and are far too narrow. Practice shows that the rather cumbersome avenue of reintegration programmes is mainly followed in more complex cases, those presenting psychosocial issues for instance.
At the same time, PA-OHPs have the responsibility to use ‘decision d’ only when all other options have been exhausted. It is up to us to inspire employers by offering them creative solutions for adapted or other work, so that ‘medical force majeure’ indeed remains a last resort. But it is equally important that employees contact the PA-OHP as soon as possible: the sooner this happens, the greater the chance that adapted work and reintegration will be possible for them.