New rules on medical force majeure and the medical certificate

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A new Act, which includes various provisions on incapacity for work, was published in the Belgian State Gazette on 18 November 2022.

This Act, which will enter into force on 28 November 2022, contains the following three important new measures regarding sick employees:

(i) The already-announced new and enhanced procedure for determining medical force majeure, which will shortly be completely separated from the re-integration track for the reinstatement of sick employees in the company; and

(ii) The exemption from submitting a medical certificate, three times a year, for the first day of illness for workers in companies with at least 50 workers; and

(iii) The exemption from the employer’s payment of the guaranteed salary when the employee becomes incapacitated again during the first 20 weeks of a partial resumption of work with the consent of the health insurance fund’s advisory doctor.

We briefly explain these new measures below. 

The new track to determine medical force majeure

The ‘old’ re-integration track, which was introduced to guide long-term ill employees to other or adapted work within the company, was in the past often used as a facilitator for a ‘medical force majeure termination’.

This will no longer be possible. Indeed, from 28 November 2022, medical force majeure will have to be established through a separate ‘medical force majeure’ track, which has been completely separated from the re-integration track. The re-integration track, in turn, has received a face-lift, which we recently informed you about in our October 2022 newsflash.

When can this medical force majeure track be initiated?

The procedure for medical force majeure may only be initiated:

• After at least 9 months of incapacity for work; and
• To the extent that no re-integration track is ongoing.

In the case of a work resumption, the 9-month period will be interrupted and the ‘counter’ will be reset to zero, unless this work resumption lasts less than 14 days.

How does this procedure work?

When will termination for medical force majeure be possible?

Termination for medical force majeure will only be possible if the occupational doctor has decided that the employee is indeed definitively incapable of performing the agreed work, the appeal procedure has been exhausted, and:

1.      The employee has not asked to examine the possible options for adapted or different work; or

2.     The employee did ask to examine the options for adapted or other work, but the employer made a reasoned report that any adapted or other work is not available within the company; or

3.     The employee did ask to examine the options for adapted or other work, but refused the other or adapted work offered by the employer.

If the occupational doctor does not establish that it is definitively impossible for the employee to perform the agreed work, then the procedure for medical force majeure is terminated. It can only be restarted after a new 9-month period of incapacity for work.

Exemption from submitting a medical certificate for the first day of illness

If so provided for in the work rules or in a collective bargaining agreement, the employee must submit a medical certificate in the case of any work incapacity.

Following the new law, the employee will now be exempted from this obligation to submit a medical certificate three times a year for the first day of work incapacity. This applies both to absences of one day due to work incapacity and to the first day of a longer absence.

However, the employee must inform the employer at which address he/she will reside on this first day of incapacity if this address differs from his/her usual place of residence.

Companies that employ less than 50 employees can deviate from this exemption and thus also require a medical certificate for the first day of work incapacity if they explicitly include this deviation in their work rules or in a collective bargaining agreement.

Guaranteed salary in the case of partial work resumption

In the case of partial work resumption with the consent of the health insurance fund’s advisory doctor, the employer will not be obliged to pay guaranteed salary if the employee becomes incapacitated for work again during the first 20 weeks of his/her resumption of work.

However, the employee will again be entitled to guaranteed salary if he/she becomes incapacitated for work again after this 20-week period.

Written by

• Esther Soetens

  Counsel