How does the medical force majeure procedure work?

Understandably, the focus of the amended reintegration legislation is on the reintegration of employees with an incapacity for work. Yet in some cases, an employee may be declared permanently incapacitated to perform the agreed work and reintegration is not possible at their current workplace. In these cases, a specific procedure can be started to terminate the employment contract due to medical force majeure (special procedure in the context of Art. 34 of the Employment Contracts Act).

There are two strict conditions that apply:

1. The employee must be continuously unable to work for at least nine months.
2. A reintegration process has not been initiated for the employee in question.

Note that if an employee tries to resume work but relapses within 14 days, this does not count as a break in the incapacity for work.

Both the employer and employee can initiate this specific process. This needs to be done via a registered letter to the other party and to the occupational physician (see documents below). The next step is an examination by the occupational physician ten days after the request at the earliest (see documents below). Note that if, as an employer, you do not use these documents, the notification to the employee must explicitly include this information:

• The employee has the right to ask the occupational physician about possibilities to consider other or adapted work.
• During this procedure, the employee can be assisted by the company’s trade union delegation.

The occupational physician will determine whether the employee is definitively unable to perform the current agreed work. It is important to describe this clearly in the request to help the occupational physician make this assessment. If the occupational physician considers it relevant, a workplace visit may be scheduled.

In determining a definitive incapacity for work, the employee can ask the occupational physician to examine possibilities for adapted or other work. The employee is required to confirm his or her choice in writing.

The occupational physician may request and process personal data, including data on the employee’s health. With the employee’s consent, the occupational physician may also contact other medical professionals, such as the employee’s general practitioner or a specialist.

The occupational physician decides whether or not the employee should be declared definitively unable to perform the current agreed work. If so, there may be specific conditions for adapted or other work attached to it if requested by the employee in writing.

Within three months of receiving the request, the occupational physician notifies the employer, employee and – if the decision is a definitive incapacity for work – the consulting physician from the health insurance fund of the decision by registered letter.

Scenario 1: The employee is declared definitively unable to perform the agreed work and did not request the conditions for adapted or other work

• The employee can appeal if he or she disagrees with the decision of definitive incapacity to perform the agreed work. This must take place within 21 calendar days of receiving the form for definitive incapacity for work by means of registered letter to the employer and the inspectorate.
• Within seven calendar days of receiving the form, the employee can request the conditions for other or adapted work. This must be done by registered letter. The occupational physician then has 30 calendar days to provide the conditions for other or adapted work to the employer and employee. If the employee opts for this, scenario 2 then applies.
• Termination of an employment contract for reasons of medical force majeure is possible if no further appeal is possible or if the decision of definitive incapacity for work is maintained after the appeal.

Scenario 2: The employee is declared definitively unable to perform the agreed work and has asked the occupational physician to examine possibilities for adapted or other work

• The employee can appeal if he or she disagrees with the decision of definitive incapacity to perform the agreed work. This must take place within 21 calendar days of receiving the form for definitive incapacity for work by means of registered letter to the employer and the inspectorate.
• If the occupational physician has determined the conditions for other or adapted work, responsibility then lies with the employer, who must find adapted or other work in accordance with the employee’s capabilities. This is done by following the steps described in the reintegration legislation, more specifically by drawing up a reintegration plan (other or adapted work is possible) or a report with findings (other or adapted work is not possible). Coordination with the employee is necessary and required. The employer is required to send the reintegration plan (available in Dutch and French) or report with findings (available in Dutch and French) to the employee and occupational physician.
• If it is no longer possible to appeal the decision, the employment contract may be terminated due to medical force majeure provided that:
  • The employer has drawn up a report with findings that shows that adapted or other work is not possible.
  • The employer has drawn up a reintegration plan, but the employee did not accept it.

The reintegration plan or report with findings must be submitted to the occupational physician and the employee.

Scenario 3: No definitive incapacity for the agreed work has been declared for the employee

• The procedure ends without further consequences.
• The employee can initiate a reintegration process (see ‘New rules under the Royal Decree on reintegration’).
• A new procedure for terminating the employment contract can only be initiated if the employee is once again unable to work for nine months from the day on which the occupational physician’s decision is received.

Scenario 4: The employee fails to show up for the medical examination

• The employee is invited up to three times, with at least 14 days between each invitation.
• If the employee does not respond to the invitation three times, it will no longer be possible to determine a definitive incapacity for work and the procedure will end. The occupational physician will inform the employer about this.