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Employees on Long-Term Sickness Absence – Out of Sight, Out of Mind No Longer (Belgium)
Wednesday, December 13, 2023

The Belgian Parliament is currently discussing a draft Bill proposed by Federal Health Minister Frank Vandenbroucke which aims to reverse the growing trend of long-term sickness. About half a million employees have been off sick for more than a year, according to figures from the National Institute for Sickness and Disability Insurance. That’s two-thirds more than a decade ago. Because of those rising numbers, health insurance funds cannot always keep up. Some of those employees have check-ups with the health insurance fund doctor only very sporadically (the Health Minister has reportedly based his draft bill on the anecdotal story of an employee who had not seen the health insurance fund doctor in 12 years). If the Bill becomes law, employees who fall ill will have mandatory physical appointments with the health insurance fund after four, seven and 11 months of absence. Even after 12 months – when the employee is officially labelled ‘long-term sick’ – appointments will remain mandatory, but the exact timing and frequency will then depend on an assessment of the extent to which a quick return to work is realisticThose appointments will be fixed by the health insurance fund, and employees who decline to attend may see their allowance temporarily suspended.

Let’s keep in touch

Long-term illness is a pain, in first instance for the employee, but also for the employer. Like many other European countries, Belgian law does not entitle employers to know as much as they might wish about the absent employee: at regular intervals, they will receive a medical certificate which will confirm that the employee is still unfit and roughly how long this incapacity is expected to continue (at a minimum). The employer is not entitled to the detail of the employee’s medical condition, or (beyond that certificate) any other information that would allow it to predict the employee’s return date. Yet this is precisely the information an employer ideally needs to have in order properly to address the absence: is the absence going to be short term, such that colleagues can pick up the extra work, or is it advised to recruit a temp, or even an employee with a fixed term contract (linked to the absence of the employee they are replacing)? Could measures be taken to facilitate an earlier or graduated return? In every case, it is hard to tell if you don’t know the nature of the underlying condition.

While this – intentional – discretion on the legislator’s part cannot be helped, there are still things you can do to make the best of what you do know. The rules on employees’ obligations regarding absence from work are usually included in the employee handbook, for example. Very often, when it comes to the extension of sick leave, the handbook will simply say that the same rules apply as for the initial period of absence, meaning that the employee just has to inform the employer of the absence in the morning of the first day of absence, and provide a medical certificate on the second day. For an extension of sick leave, which is may be more predictable than the start of the illness, you may want a bit more of a heads-up. The lack of detail in the law here allows you to request this in the handbook. You could for example request that an employee informs you at least a week before the expected return date of whether they indeed expect to return, or to the contrary, if an extension of their sick leave is expected. This at least avoids surprises on the expected return date.

Sensitive topic

Can you contact the employee during their absence and discuss their situation? Yes, you can (and should, if it is your intention to ask them what you can do to assist), and there is nothing unlawful about asking in that conversation when they think they might be back, but the employee is not required to have these conversations if they do not want to, whether because they are too unwell or are just not willing. And if they do share information about their medical situation and prognosis, what can you do with this information? Not too much, as it turns out, even though it is information voluntarily provided by the employee. This is information about an employee’s medical situation, so from a data protection stance, covered with flashing red lights and klaxons — prudence is very much advised. What you certainly shouldn’t do is share this information freely within the organisation and mention it in internal reports and the like (not even if there is a legitimate business interest in that information).The Belgian Data Protection Authority gets quite tetchy when employers do that.

When long-term becomes indefinite

If the absence exceeds 9 months, the employer or the employee may also consider starting the procedure to deem the employee permanently incapacitated to perform their job. Statistics show that in 30% of cases, the employee makes the first move. They may be persuaded to do so if they cannot see themselves returning to the workplace, but equally do not want to resign, as that may cause them to be sanctioned by the Unemployment Office. If permanent incapacity is established, then the employment contract may be terminated for force majeure, which means without notice or payment of a severance indemnity. As part of the legislative initiative mentioned in our previous blog, there will be an “administrative contribution” of 1.800 EUR to be paid by the employer in cases of medical force majeure – a small price if that allows the termination without substantial payment of someone who is clearly not coming back.

Permanent incapacity for work will only count as force majeure for these purposes after the necessary conditions have been satisfied, i.e.:

  • when the employee has been continuously absent from work for a period of at least nine months; and
  • no re-integration process as referred to in the Codex on Well-being at Work is ongoing for the employee. The re-integration process is a separate track that focuses on getting employees back to work, with reasonable adjustments to their working conditions if this is needed to allow a return to work.

This nine-month period is interrupted if the employee comes back to work unless they go off ill again within the first fourteen days back — then this period is deemed not interrupted.

As part of this process, the employee must be examined by the company doctor, who may recommend adjustments to the employee’s terms and working conditions. If these are not practicable or acceptable to both employee and employer, the end of the employment agreement may be determined.

The procedure to establish medical force majeure has recently been decoupled from the formal re-integration process (which aims to get the employee back to work). Since this decoupling, the number of re-integration processes has sadly decreased significantly, whereas the number of cases of medical force majeure has increased considerably. This might be seen as regrettable but on the other hand may simply be recognising the reality that it can be very hard to come back to work successfully after long-term illness. Something has generally changed for both employer and employee, whether organisationally or psychologically, and the necessary relationships are often hard to rebuild in full.

In conclusion The rise of long-term illnesses, often mental health issues, is one of the diseases of our modern times, in no sense limited to Belgium or Europe as a whole. Around the world it has both employers and politicians worried. The solution to this problem will have to be multi-faceted to be successful, probably relying both on carrot and stick. For now however, Belgian measures seem to focus most on transferring part of the financial responsibility to the employer through the 1.800 EUR contribution, and the so-called “accountability contribution” introduced in 2022, for companies where the number of employees on long-term illness is three times the average in the private sector and twice the average in the industry sector. These financial measures will not be sufficient to turn the tide, but we will keep you informed of future developments.

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