New rules on incapacity for work
Today (18 November 2022) the law containing various provisions on incapacity for work was published in the Belgian Official Gazette. The law contains new rules on medical force majeure, but also abolishes the sick note under certain circumstances and amends the rules on guaranteed salary for employees in case of partial resumption of work.
The law enters into force on 28 November 2022.
Below, you can find a brief summary of the main elements of the new legislation.
1 ABOLITION OF SICK NOTE
Employees who are incapacitated for work must immediately report this to the employer. This obligation has not changed. In addition, the employee must submit a sick note, if the work rules or a collective bargaining agreement prescribes so.
From now on, the employee has the right not to submit a sick note for the first day of incapacity for work, and this up to 3 times per calendar year. This exemption applies to both a one-day incapacity for work and the first day of a longer period of incapacity for work.
The employee making use of this exemption must not only immediately inform his employer of his incapacity for work, but must also immediately communicate the address at which he will reside during the first day of incapacity for work, unless this address corresponds to his usual place of residence known to the employer.
Companies with less than 50 employees on 1 January of the calendar year in which the incapacity for work occurs, can deviate from this exemption and continue to require a sick note from the first day of incapacity for work. This deviation from the exemption must in that case be clearly provided for in a collective bargaining agreement or in the work rules.
The calculation method of 50 employees is not specified. Hence, a part-time employee also counts as 1 employee.
2 MEDICAL FORCE MAJEURE
The termination of an employment agreement due to force majeure (without notice period or payment of severance indemnity), will be subject to a new procedure to be followed. The new procedure is completely separated from the reintegration track (see New rules re-integration track 2.0 | Lydian).
The procedure can be initiated by both the employer and the employee, after a minimum of 9 months of uninterrupted incapacity for work, provided no reintegration track is ongoing. A new incapacity for work within the first 14 days of a work resumption does not interrupt the 9-month period.
The effective termination of the employment agreement due to medical force majeure is only possible if the employee is permanently unable to perform the agreed work and:
- The employee has not asked to examine the possibility for adapted or other work;
- The employee did ask to examine the possibility for adapted or other work, but
- The employer cannot offer adapted or other work; or,
- The employee refuses the adapted or other work offered by the employer.
If the employee is not permanently unable to perform the agreed work, the procedure takes an end without effect. A new procedure can only be initiated after another period of at least 9 months uninterrupted incapacity for work.
3 LIMITATION OF NEUTRALISATION OF GUARANTEED SALARY FOR EMPLOYEES IN CASE OF PARTIAL RESUMPTION OF WORK
An employee who partially resumes work with his or another employer with the approval of the advising doctor of the health insurance fund and who becomes incapacitated for work again during the period of resumption of work, will not receive guaranteed salary for a period of 20 weeks from the start of the partial resumption of work.
However, an employee who becomes incapacitated for work after this 20-week period, is entitled to guaranteed salary.