Termination of employment contract for reason of medical force majeure

Article 34 of the Employment Contracts Act provides for the possibility of terminating the employment contract for reason of medical “force majeure” at the end of the reintegration path, which is governed by the Code on Well-being at Work.

On 27 October 2022, the Chamber adopted a bill (*1) amending this article. In the future, the reintegration path process (which has been modified since 1 October 2022) will be dissociated from the new specific procedure to be followed to terminate the employment contract for reason of medical “force majeure”. The purpose is to promote the reintegration of workers and avoid the misuse of the reintegration path with the sole aim of terminating the employment contract.

The new rules are provided in the amended Article 34 and the new Article I.4-82/1 of the Code on Wellbeing at Work which provides for the specific procedure to be followed. It can be summarised as follows:

- The (new) specific procedure to terminate the employment contract for reason of medical “force majeure” can only be initiated when the worker has been continuously (*2) unfit to work for at least nine months and provided that no reintegration path is ongoing. 

- This specific procedure must absolutely be followed to be able to terminate the employment 
contract for reason of medical force majeure. It can be summarised as follows:

• The worker or the employer notifies the other party and the Prevention Advisor/Occupational Physician by registered mail of the intention to assess whether it is definitively impossible for the worker to perform the agreed work. In the case of notification by the employer, the latter has to inform the worker about certain rights (right to ask the Prevention Advisor/Occupational Physician to examine the possibilities of adapted work or another work and right to be assisted by the trade union delegation);
• The Prevention Advisor/Occupational Physician invites (*3) the worker to an examination that will take place at the earliest 10 calendar days after the notification and, if necessary, examines the workplace. If the worker agrees, the Prevention Advisor/Occupational Physician may consult the general physician, the physician who issued the medical certificate, and/or the advising physician of the health insurance company. He determines whether it is definitively impossible for the worker to perform the agreed work and informs the employer and the worker of his/her statement as soon as possible and at the latest within the three months following the receipt of the above-mentioned notification. If the worker asks for it, the Prevention Advisor/Occupational Physician will also examine the possibilities of adapted work or another work.

- The employment contract may only be terminated for reason of medical “force majeure” if it appears from the statement of the Prevention Advisor/Occupational Physician, which is no longer subject to appeal (because the time limit has expired), or from the outcome of the appeal procedure (*4) that it is definitively impossible for the worker to perform the agreed work and that:

• (i) the worker has not requested to examine the possibilities of adapted work or another work, in accordance with the specific procedure provided for; or
• (ii) the worker has requested to examine the possibilities for adapted work or another work and the employer has provided the worker and the Prevention Advisor/Occupational Physician, following the specific procedure provided, with the reasoned report explaining why the establishment of a plan for adapted work or another work is technically or objectively impossible or cannot be required for duly justified reasons; or
• (iii) the worker has asked to examine the possibilities for adapted work or another work and the employer has provided the worker and the Prevention Advisor/Occupational Physician with the plan for adapted work or another work which the worker has refused.

If it does not appear from the statement of the Prevention Advisor/Occupational Physician, or from the results of the appeal procedure, that it is definitively impossible for the worker to perform the agreed work, this procedure takes an end without further action. The procedure may only be restarted once the worker reaches again at least nine months of uninterrupted work incapacity. However, a reintegration path can be started.

(*1) Bill on various provisions regarding work incapacity. Until the publication of the law, the date of entry into force of this new Article 34, as well as the related provisions of the Code on Well-being at Work, is not yet known but it should be soon.
(*2) It is specified that these nine-month are interrupted when the worker actually returns to work, unless the worker, during the first 14 days following his/her return to work, is again on work incapacity, in which case this period is deemed not to be interrupted.
(*3) If the worker does not accept the invitation of the Prevention Advisor/Occupational Physician 3 times in a period of 3 months, with an interval of at least 14 calendar days between each invitation, the Prevention Advisor/Occupational Physician will inform the employer.
(*4) Appeal period of 21 calendar days to be lodged with the competent social inspector physician of DG Control on well-being at work.