Newsletter 2024 – 09

1 Reintegration processes and medical force majeure procedure

As we know, after an uninterrupted period of three months of incapacity for work, the employer can ask the occupational physician to initiate a reintegration program (RIT). After an uninterrupted period of nine months of incapacity for work, the employer can ask the occupational physician to initiate the special procedure for determining permanent incapacity for work.

The employee can request a disability insurance policy from the first day of incapacity for work. Their treating physician can also do so, provided they have their patient's consent.

In mid-November 2024, the statistics for 2023 were published on the website of the FPS WASO. The occupational physicians made 6,685 decisions in RITs. In 73% of cases, this was done at the request of the employer, and in 27% at the request of the employee.

The occupational physicians made 23,074 decisions within the framework of the special procedure for medical force majeure; in 70% of the cases, this was at the request of the employer. One in four decisions stated that the employee was not permanently unfit for the contracted work. In three out of four cases, the occupational physician decided that the employee was permanently unfit. In this latter category, in approximately 90% of the cases, the employee did not request an investigation into the possibilities for adapted or alternative work.

In 30% of cases, the employee initiated the medical force majeure procedure. In almost 98% of cases, the occupational physician decided on permanent incapacity for work. In this latter category, almost 97% of employees did not request an exploration of the possibilities for modified or alternative work.

Unfortunately, no figures are published on the number of appeals filed against occupational physicians' decisions with the medical inspectorate. This may be because the number is negligible. Apparently, employees generally agree with the occupational physician's decision.

Considering that more than 500,000 employees are incapacitated for work for an extended period, it's strange that only 6,685 disability insurance decisions were made in 2023. Even stranger is the fact that only about 1,800 employees (and their treating physicians) took the initiative to initiate a disability insurance program. That's 0.0036%. However, since the end of 2022, the risk that initiating such a disability insurance program could lead to a decision of permanent disability has disappeared.

The High Council for Employment wrote in a March 2024 report: "The chance of leaving disability benefits decreases rapidly after six months of absence. In those first six months, two-thirds of those affected leave the system, but after that, returning to the labor market becomes much more difficult. About two in ten people who become disabled remain absent for a year. But of those who have been ill for a year, eight in ten are still disabled a year later. This percentage continues to increase as the length of absence increases."

The new-style reintegration program, separated from the medical force majeure procedure, appears to be having little success. The effect is negligible. For some reason, employers are unwilling to participate, and employees (and their treating physicians) even less so.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be

2 Jurisprudence – incapacitated and partying on the Côte d'Azur

Brussels Labour Court, 21 November 2023, www.socialwin.be

Feigning disability in order to celebrate a few birthdays in the South of France with a colleague who is also 'disabled' is grounds for immediate dismissal.

AB was employed by CD as a part-time salesperson in a store. The relationship between CD and employee AB had been rather tumultuous for some time, and AB had already indicated to colleagues that she was seeking immediate dismissal with severance pay when, in early March 2019, she was absent due to illness for three consecutive workdays (March 6, 7, and 9). She notified her employer on the first day of her incapacity for work. The doctor's certificate arrived at her employer on March 12, 2019.

Meanwhile, her colleagues and a manager were able to enjoy photos and videos AB posted on Instagram. These images showed her and another employee, Ms. MN, in the South of France on March 8th and 9th, "en train de faire du tourisme." They drank cocktails and enjoyed the sun. MN had also called in sick for those days and provided her employer, CD, with a certificate of incapacity for work, issued by the same doctor who had also confirmed AB's incapacity for work.

The court firstly considers that the employer can still dispute an employee's incapacity for work even if he has not sent out an examining physician.

The court finds that AB seriously failed to fulfill her duty of loyalty to her employer. The Instagram images, among other things, make it clear to the court that AB and MN had agreed to report sick to work, obtain a certificate of goodwill from the same doctor, and celebrate their birthdays in the south of France on March 9th. The court considers this an urgent reason.

The 'therapeutic' motive cited by AB for the first time on appeal did not detract from this. Her GP had confirmed in an additional post-factum that he had recommended a trip to AB 'to change her mind'. The Court clearly does not give credence to this claim and considers that even if that story were true, it still demonstrates a total lack of loyalty to brag in Instagram videos to a group of colleagues and even superiors under those circumstances about a birthday party in a southern tourist resort.

Like the labor court, the court of appeal also rejected AB's claims for payment of severance pay and compensation for manifestly unreasonable dismissal (!).

The judgment illustrates the remarkable certification behavior of certain doctors.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be

3 Ruling of the Dispute Resolution Chamber of the Flemish Human Rights Institute

Dispute Resolution Chamber, judgment 2024-4 of 19 August 2024, www.vlaamsmensenrechteninstituut.be

The Dispute Resolution Chamber ruled that the rule that partners in a permanent relationship may not work in the same school discriminates on the grounds of marital status.

A school community has a rule that people from the same family may not work in the same school. As soon as someone develops a lasting emotional relationship with a colleague, one of them is transferred to another school. In one of the schools within the community, two teachers began a relationship. Four years after the start of their relationship, an equivalent position became available in another school, and one of the teachers was transferred to that school. There was no immediate reason for this: it was the pure application of the measure that was put in place to protect the school board from any subsequent conflicts between such "emotional" partners, or one of them, and the school board. This policy, the school maintained, served the purpose of objectivity, serenity, and good order within the school board. One of the transferred teacher's colleagues disagreed and contacted the Flemish Human Rights Institute, after which the case was referred to the Institute's Dispute Resolution Chamber.

The Dispute Resolution Chamber ruled that this case constitutes direct discrimination based on the criterion of "marital status." This concept is broader than the formal status related to aspects of legal capacity and legal capacity, such as being unmarried, married, divorced, or widowed. Establishing a lasting emotional relationship falls under the protective characteristic of "marital status." While the unfavorable treatment suffered by individuals who maintain a lasting emotional relationship and work at the same school does have a legitimate purpose—avoiding social conflict—the Dispute Resolution Chamber found the school failed the proportionality test. The Dispute Resolution Chamber is not convinced of the appropriateness and necessity of this preventive measure, which also does not allow for exceptions. The school community fails to demonstrate that the mere fact that two staff members from the same school develop a lasting emotional relationship during their employment increases the risk of social conflict to such an extent that those conflicts would then be so intense that existing corrective measures (used for conflicts between staff members who do not maintain a lasting emotional relationship) would be insufficient.

The Dispute Resolution Chamber recommends that the school community discontinue this transfer policy and offer the teacher in question the opportunity to take up a position at their former school.

In Belgium, there is no legal framework regulating emotional relationships at work. It is assumed that this violates the right to privacy of the employees involved and that an employer has no right to intervene. However, it doesn't take much imagination to conceive of situations in which a romantic relationship between colleagues could hinder the proper performance of the employment contract. Consider, for example, a relationship between employees who are hierarchical. Some companies (especially multinationals) have a code of conduct that doesn't so much prohibit a relationship as stipulate an obligation to disclose it. In America, there are even actual "love contracts" in which agreements are made about what is still permissible and what is definitely not.

You can read the full judgment here

Steven Renette, lawyer-partner
steven.renette@mploy.be