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Incapacity for work and force majeure: don’t forget the reintegration process

Until recently 2 medical certificates were enough to terminate a contract of employment on the grounds of medical force majeure: a certificate of the treating doctor and a certificate of the company doctor.

However, since 9 January 2017 this termination needs to be preceded by a reintegration process which implies that when the treating doctor has decided on a permanent incapacity for work, the company doctor needs to find out whether the employee is able to carry out other or adapted work. When this is not the case, the agreement can be terminated.

When the company doctor believes adapted or other work is possible, the employer needs to draw up a re-integration plan unless this is technically or objectively impossible or cannot be demanded in all reasonableness. This then needs to be substantiated in writing by the employer after which the process is considered terminated and termination of the contract of employment becomes possible.

Refusal to draw up a re-integration plan can result in sanctions laid down in the Social Penal Code.

If the employee refuses the offered re-integration plan, the employer specifies this in his report, the process is considered terminated and the contract of employment can be terminated after which the employee may possibly be penalised by the RVA (National Employment and Placement Service).