Medical force majeure is a means of terminating an employment contract in the event of the employee's definitive inability to carry out his or her duties. However, it must comply with a strict process.
In 2016, this process was linked to the reintegration process. In 2022, the procedure was made stricter in order to dissociate reinstatement from termination. The objective was to give a more positive connotation to the reintegration process while preventing abuse.
These changes make medical force majeure more complex to apply, having a direct impact on the management of long-term absences in companies. The 2022 text does, however, raise a number of practical questions.
Procedure to follow: general overview of the rules
After 9 months of uninterrupted incapacity (unless the employee has been back on the job for less than 14 days), the employee and/or the employer may initiate a medical force majeure procedure by sending a registered letter to the other party and to the occupational physician.
No earlier than 10 days after the notification has been received, the occupational physician will invite the employee for an examination. If the employee does not accept the invitation 3 times over a period of 3 months (with 14 calendar days between two invitations), the procedure will be abandoned and the employee will have to wait a further 9 months before being invited again.
After the examination, the occupational physician communicates his or her findings to both parties in a registered letter. The employee has 21 calendar days (from the day after receiving the occupational physician's decision) to lodge an appeal if he or she does not agree with the finding that he or she is definitively unfit for work.
If the employee so requests (either directly or within 7 calendar days of the decision), the employer, in accordance with the terms and conditions determined by the prevention advisor/occupational physician, will examine whether adapted or other work is possible in the company and, if so, will present a plan to the employee.
The employment contract may be terminated on the grounds of medical force majeure if it appears that it is definitively impossible for the employee to carry out the agreed work. This decision will be based on the finding of the occupational physician (against which no further appeal is possible) or on the outcome of the appeal procedure. One of the following situations must also apply:
- The worker has not asked to examine the possibilities for adapted or other work;
- The request has been made but the employer is unable to offer adapted or other work (this must be the subject of a reasoned report sent to the person concerned and to the prevention advisor/occupational physician);
- The request has been made but the worker has refused the adapted or other work offered by the employer.
A few practical questions
What if the employee fails to appear or refuses the notification(s)?
Both the legislation and the preparatory work specify that the procedure is then terminated without further action. The physician cannot establish that it is definitively impossible to carry out the agreed work, and the employee must wait another nine months.
The question that obviously arises is whether this lack of cooperation can be blamed on the employee. The case law seems to generally accept that this can justify, if applicable, a serious reason in the context of the reintegration process. This is based in particular on the obligation to cooperate set out in Article I.4-78 of the 'Well-being' Act. However, the new medical force majeure procedure no longer provides for such an article. Since this procedure has been separated from the reintegration process, it is no longer possible to refer to this obligation.
So what can be done? It would undoubtedly be possible to rely on the general principle of good faith in contracts in order to reproach the employee for his or her behaviour. The employer could also make failure to cooperate in this process a disciplinary offence in its work regulations. However, the author is not aware of any case law on the subject and therefore urges the utmost caution.
What about the time limit for appeals?
During the initial examination by the occupational physician, it is often the case that the employee does not ask for the possibility of adapted work to be examined. However, they still have 7 calendar days following receipt of the decision to do so. This request must be sent by registered mail to the employer and the occupational physician. The physician will then re-examine the case and issue a new decision.
But what about the 21-day appeal period? When does it end?
The FPS clarified its position when asked about this: The 21-day period starts to run on the day of the 1st definitive decision of incapacity. If the employee does not appeal against his or her definitive incapacity and limits himself or herself to requesting adapted work which the employer objectively cannot provide (care must be taken to ensure that the conditions are met), his or her contract may be terminated after the appeal period.
Remember that the employee is presumed to have received the occupational physician's decision on the third working day after it is sent. It should also be noted that the 21-day period begins on the day following the day (presumed, unless proven otherwise) of receipt. Note that the 7-day period for submitting the request for adapted work starts on the day of receipt.
What about a definitive finding of incapacity following another procedure?
The answer to this question is clear in the law, even if the administrative burden involved may seem unnecessary or even irrelevant in certain situations. Thus, if a worker undergoes a medical re-examination at the end of which the occupational physician concludes that he or she is permanently incapacitated, medical force majeure cannot be invoked, even if the incapacity has exceeded the 9-month period. A specific procedure will then have to be initiated, provided that no reintegration process is in progress.
Christophe Depoorter, Lawyer
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