Reintegrating employees on long-term absence due to illness: What has changed?

To facilitate the process of reintegrating employees who are on long-term absence due to illness, Minister of Social Affairs Maggie De Block and Minister for Employment Kris Peeters have developed a new Royal Decree, effective from 1 December 2016. What are some of the key changes for employers?

Unlike in previous years, employers are now able to initiate the reintegration process for workers who have been absent for four months or longer due to illness. In addition, drawing up a reintegration plan is now mandatory for employers. Another significant change is the role of the advisory physician from the sickness and disability insurance fund. He or she will be assessing the options of a progressive return to work or the employee’s incapacity to work and will be able to initiate the reintegration process autonomously. Read the case study to find out more.

What is the objective of the new Royal Decree?

With the new decree, the government aims to facilitate the reintegration of employees who are on long-term absence due to illness and who are therefore temporarily or permanently unable to carry out the agreed duties. There are, however, two exceptions:

  • employees who are the victim of an occupational accident;
  • employees who are suffering from an occupational illness.

How to start the reintegration process?

The reintegration process consists of two steps:

  1. the reintegration assessment conducted by the prevention advisor-occupational health physician (PA-OHP)
  2. the reintegration plan drawn up by the employer

Both steps are explained below.


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Who can initiate the reintegration process?

The reintegration process can be initiated by either of the following three parties:

  • The employee or his/her treating physician, in which case the PA-OHP will notify the employer and the advisory physician.
  • The advisory physician from the sickness and disability insurance fund. The PA-OHP will in that case notify the employer.
  • You, as the employer, on the condition that the employee has been absent for four months or longer, or after having receiving a certificate from the treating physician confirming the employee's permanent incapacity to work. The PA-OHP will notify the advisory physician.

As from 1 January 2017, employees can initiate the reintegration process themselves, irrespective of the start date of the period of incapacity.

Employers can initiate the reintegration process as from:

  • 1 January 2017 for periods of incapacity commencing on or after 1 January 2016
  • 1 January 2018 for periods of incapacity commencing prior to 1 January 2016

What are the various stages of the reintegration assessment carried out by the PA-OHP?

The assessment takes place in several stages and must be finalised within 40 business days following receipt of the request for reintegration.

  1. First, the PA-OHP will determine whether or not the employee can resume the agreed duties – possibly with restrictions – after a certain period of time. The employee’s remaining work capacity is a key factor to be considered with regard to his or her potential reintegration in the workforce.
     
  2. If consented by the employee, the PA-OHP can consult the treating physician, the advisory physician or any other prevention advisor/person who could contribute to a successful return to work.
     
  3. The PA-OHP will examine the employee’s job position and work environment.
     
  4. All findings are documented in a report and added to the employee’s health file.
     
  5. The PA-OHP will then write down his or her decision on the reintegration assessment form. The form is then sent to the employer and the employee, and is also added to the employee’s health file.

What are the possible decisions and what does each decision mean?

There are five possible scenarios, depending on a potential return to work and any restricted work or other work duties.

  1. The employee can resume the agreed-upon work duties after some time. Restricted work or other work duties can be carried out in the interim.
    • The modalities for restricted work or other work duties, as well as a timeframe for the next assessment, are established by the PA-OHP.
    • You must draw up a reintegration plan within 55 business days (see below).
       
  2. The employee can resume the agreed duties after some time. Restricted work or other work duties cannot be carried out in the interim.
    • The PA-OHP establishes a timeframe for the next assessment.
    • The PA-OHP notifies the advisory physician.
       
  3. The employee is permanently incapable of resuming the agreed duties. However, restricted work or other work duties with the same employer can be carried out.
    • The modalities for restricted work or other work duties are established by the PA-OHP.
    • You must draw up a reintegration plan within 12 months (see below).
       
  4. The employee is permanently incapable of resuming the agreed duties and is not capable of carrying out restricted work or other work duties.
    • The PA-OHP notifies the advisory physician. The reintegration process is terminated.
       
  5. The PA-OHP decides that due to medical reasons, it is not the right time to initiate the reintegration process
    • Reassessment by the PA-OHP every 2 months.
    • The PA-OHP notifies the advisory physician.

What if the employee disagrees with the reintegration assessment?

The employee can appeal the decision of the PA-OHP that he or she is permanently incapable of resuming the agreed duties (scenarios 3 and 4 above).

To do so, the employee must send a registered letter to the relevant physician/inspector of the general directorate for the monitoring of well-being in the workplace. The employee must also notify their employer about the appeal.

Within 31 business days following receipt of the appeal, the physician/inspector, the treating physician and the PA-OHP must make a decision on the appeal by majority vote. If they decide to dismiss the appeal, then you, as the employer, will have to draw up a reintegration plan, or – by invoking force majeure – opt for dismissal.

This means that terminating the employment agreement due to force majeure in the event of the employee’s permanent incapacity to work is only possible after all the steps of the reintegration process have been completed, including the appeal procedure. The occupational health physician must verify each time whether restricted work or other work duties are an option with the same employer.

What about reintegration and labour law?

Specific situations may occur during the performance of restricted work or other work duties that may affect the employment relationship. To safeguard the legal rights of all parties, the following provisions have been made:

  • Your employee’s incapacity to work returns during the performance of the restricted work or other work duties.
    If this is the case, then guaranteed wages will not need to be paid again.
     
  • The employment agreement is terminated during the employee’s performance of the restricted work or other work duties.
    Compensation for dismissal is calculated based on the wages payable under the initial employment agreement.

How to draw up a proper reintegration plan?

As an employer, you will be required to draw up a reintegration plan for an employee in the following three cases:

  1. the employee is able to resume the agreed work duties after some time and can perform restricted work or other work duties in the interim. The reintegration plan must be drawn up within 55 business days.
  2. after the time frame for appeal has lapsed if the employee is deemed permanently incapable of resuming the agreed duties.
  3. after having received the decision made during the appeal procedure.

Due to circumstances, the employer may not be able to draw up the reintegration plan. If drawing up the plan cannot be done objectively, cannot be expected of the employer on reasonable grounds, or if it is impossible for the employer to do so for technical reasons, then no further action is required. However, you will need to list these reasons in a report that must be made available at the request of authorised officials.
 

Content

As the employer, you must draw up the reintegration plan in consultation with the employee, the PA-OHP and others who may contribute to a successful outcome.

The reintegration plan must include one or several measures, as detailed and specific as possible:

  • description of adjustments to be made to the workstation
  • description of restricted work duties
    • volume of work
    • work schedule
    • measures for progressive reintegration
  • description of other work duties
    • task description
    • volume of work
    • work schedule
    • measures for progressive reintegration
  • training to acquire and enhance skills and competences
    period of validity of the reintegration plan
     

Assessment by the advisory physician

The PA-OHP submits the reintegration plan to the advisory physician. He or she will then decide whether a progressive return to work is possible, or confirm the employee’s incapacity to work. This decision is incorporated in the reintegration plan, and as the employer, you may need to make adjustments to the plan where needed.
 

Communicating with employees who are on long-term absence

As the employer, you must submit the reintegration plan to the employee concerned. The employee must then decide within 5 business days following receipt of the reintegration plan whether he or she accepts or rejects the plan. If the plan is accepted, then the employee must sign the plan for approval. It not, then he or she must write down the reasons for rejection in the reintegration plan, and in that case, the reintegration process ends then and there.

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