Today, the law of October 30 2022 containing various provisions on the incapacity to work was published in the Belgian Official Gazette.
This law contains a number of labour law measures relating to the incapacity of employees to work due to illness or accident.
Abolition medical certificate
This law provides for the abolition of the medical certificate three times per calendar year for the first day of incapacity to work. This will reduce the pressure on general medical practitioners (GMPs) and encourage a relationship of trust between employers and employees in case of illness. This modification of the statute may also have a limited activating effect: On the one hand, it creates an incentive not to stay incapacitated for more than 1 day. On the other hand, GMPs who are not consulted also do not have the opportunity to prescribe a longer duration of illness than is necessary.
Before the enactment of said statute, the employee always had in case of incapacity to work, to present a medical certificate at the employer’s request. This obligation could also be imposed through a collective bargaining agreement or in the undertaking’s work rules (arbeidsreglement- règlement de travail).
New paragraph added to article 31 of the Law on Employment Contracts
Iin article 31 of the statute of July 3rd 1978 on employment contracts, a new paragraph is added, on the basis of which an employee will no longer have to present a medical certificate for the first day of an incapacity to work up to three times per calendar year. A collective bargaining agreement nor the work rules may derogate from this exoneration.
This exemption applies both to a one-day incapacity to work and to the first day of a longer period of incapacitation. After all, the employee cannot predict how long his incapacity to work will eventually last. Therefore, the employee who feels after the first day of incapacity to work that his incapacity will last longer will also be able to make use of this measure. Moreover, the statute determines that the employee does not need to have his incapacity retroactively certified. As a consequence, the employee must only submit a medical certificate endorsing his incapacity to work from the second day of his absence because of illness.
This does not mean that the employee’s duty to inform the employer of his absence to work is abolished.
Illness during the working day does not count as the first day of incapacity to work. This is an interrupted working day. When the employee falls out because of sickness on Friday (his last day of work during that week) and continues to be sick on a Monday, the illness continues. The weekend is an inactivity period for the employee in this example. So in this situation, Monday will not be the first day of illness and may require to be covered by a medical certificate. However if the employee provides evidence that the incapacitation on Monday is the consequence of a different illness, no medical certificate is due. This evidence could result from a medical certificate or other circumstance that happen over the weekend: incapacitation because of a traffic accident that happened on Sundays and can be documented through a police report.
Report residence address
An additional obligation is introduced by said statute for the employee who wishes to make use of the exemption: He must immediately notify the employer of the address at which he will reside during his incapacity to work. This is not necessary if that address is already known to the employer as his usual place of residence.
In this way, a visit by the control doctor, instigated by the employer, to check up on the reality of the incapacitation remains possible during the first day of sickness.
Derogation for SMCs
Small and Medium Companies (SMCs) can still derogate from the exemption to submit a medical certificate.
SMCs refer to enterprises employing fewer than 50 employees on January 1st of the calendar year in which the incapacity to work occurs.
To do so, they must conclude a new collective bargaining agreement or amend the labour regulations in such a way that it is clear that they are derogating from the exemption. They may therefore still request a medical certificate in this way.
The 50 employees must be counted per each individual worker and count equally even if they are on part-time or full-time employment contracts.
Each time on 1 January, the company must calculate the 50-employee limit.
Once the undertaking reaches the 50-employee threshold, it will no longer be able to use the derogation.
In the absence of a further definition, a undertaking is understood to be the economic unit. Hence, the notion of undertaking does not refer to the legal entity that employs the workers.
Other measures
Besides abolishing the medical certificate for the first day of incapacity to work up to three times in a calendar year, the concerned statute also modifies:
- the conditions for invoking medical force majeure to terminate the employment contract. Employees or employers wishing to invoke medical force majeure will have to follow a new procedure. This procedure will be separated from the reintegration process for employees who are incapable to work and can only be started after a minimum of nine months of incapacity.
- the conditions for a neutralisation of the guaranteed salary in the context of a partial return to work. The neutralisation of the guaranteed salary will be limited in time to a period of 20 weeks. This only concerns work authorised by decision of the advisory doctor of the health insurance fund. The neutralisation therefore only applies to partial resumption of work within this framework.
Entry into force
The measures will enter into force on the tenth day after publication in the Belgian State Gazette. As they will therefore enter into force in 2022, this means that for the first measure on the abolition of the medical certificate, the provided 3 days per calendar year will apply immediately. No prorating has been determined. So 3 separate sickdays can be taken in 2022 without medical certificate: Happy New Year!
