New rules on the reintegration path
Since 1 October 2022, new rules have come into force concerning the reintegration path of workers who are either temporarily or permanently unfit to perform the agreed work. These new rules, which apply immediately to ongoing reintegration paths, are mainly related to the following elements:
- New duty of information of the Prevention Advisor/Occupational Physician (or his/her nursing staff): he/she is obliged to inform the worker on work incapacity as soon as possible (i.e. in practice as of 4 weeks of work incapacity) of the various possibilities open to him/her when returning to work (including the possibility of requesting a pre-return to work visit or starting a reintegration path).
- Start of the reintegration path:
- by the worker during his/her work incapacity or by the general physician if the worker agrees so (there is no minimum period of incapacity); or
- by the employer at the earliest after an uninterrupted period (*1) of 3 months of work incapacity of the worker (instead of 4 months previously) or as of the date where the worker provides the employer with a medical certificate from the general physician stating that he/she is definitively unfit to perform the agreed work.
- Simplification of the decisions of the Prevention Advisor/Occupational Physician after the
reintegration examination – we switch from 5 to 3 possible decisions:
- the worker will be able to return to the agreed work at the end of the reintegration path, if necessary, with an adaptation of the workstation and possibility of performing an adapted work or another work in the meantime (Decision A);
- the worker is permanently unfit to perform the agreed work but can perform an adapted or other work (Decision B);
- it is (for the time being) not possible to proceed with a reintegration examination (*2) (Decision C).
- Clarification of the employer’s obligations when assessing the possibilities of adapted or other work and when drawing up a reintegration plan. If it is not possible to offer adapted work or other work, the employer must draw up a reasoned report explaining the reasons why this is technically or objectively impossible or why it cannot be required for duly justified reasons and showing that the possibilities of adapting the workstation and/or adapted work or other work have been accurately considered.
- Clarification of scenarios where it can be considered that the reintegration path is definitively over (five scenarios). In this case, the Prevention Advisor/Occupational Physician informs the advising physician of the health insurance company, who may on his/her side start a return-to-work path. The end of the reintegration path does not prevent a new path from being started in the future.
- Modification of some time limits which have also been converted into calendar days (it is no longer referred to working days). For example, the time limit for the worker to appeal against the decision of the Prevention Advisor/Occupational Physician declaring him definitely unfit to perform the agreed work has been extended to 21 calendar days (*3) (instead of 7 working days).
- At collective level: a collective reintegration policy should be put in place, which should then be evaluated on a regular basis (and at least once a year) by the employer together with the Committee for Prevention and Protection at Work (CPPW) (or failing that, with the trade union delegation, or failing that, with the workers directly), based on (i) a quantitative and qualitative report drawn up annually by the Prevention Advisor/Occupational Physician and (ii) a document to be provided annually by the employer to the CPPW containing the aggregated and anonymised elements of the reintegration plans and the reasoned reports (justifying the impossibility of drawing up a reintegration plan), while ensuring the workers’ anonymity.
- Reintegration as a goal: the procedure of the reintegration path is completely separated from the new specific procedure to be followed for termination of the employment contract for reason of medical “force majeure” (see the new Article 34 of the Employment Contracts Act, which should come into force shortly).
(*1) The 3-month-period is interrupted when the worker actually returns to work, unless if a new work incapacity occurs within the first 14 days following this return, in which case the period is deemed not to be interrupted.
(*2) In particular because it is not yet clear whether the worker is temporarily or permanently unfit to perform the agreed work, or because the worker still needs to undergo treatment before returning to work.
(*3) From the day following the day of receipt of the statement of definitive work incapacity to perform the agreed work.