The investigation into work potential
From January 1, 2026, every employer must have the work potential investigated for any employee who is temporarily unable to work. During this investigation, the occupational physician will evaluate whether the employee still has work potential.
The occupational physician may consult the employee's doctor and the doctor from the health insurance fund. The employee is also required to complete a questionnaire that the occupational physician will use for their assessment. After the investigation, the occupational physician will indicate whether the employee has work potential or not.
The investigation into work potential can begin as soon as an employee has been unable to work for eight weeks. Every employer with such an employee must request this investigation. However, it can also take place after nine or ten weeks of incapacity.
What happens after the occupational physician's investigation?
If the occupational physician finds that there is no work potential, your employee remains unable to work, and neither you as the employer nor your employee are required to take any action. You may start a reintegration programme, but only with your employee's consent.
If the occupational physician finds that there is work potential, you as the employer, if you have an average of 20 or more employees, must initiate a reintegration programme. This must be done within the first six months of the incapacity. If you fail to do this, you may face a level 2 sanction, which could be an administrative fine of 250 to 2,500 euros or a correctional fine of 500 to 5,000 euros per employee.
How do you calculate the average of 20 employees? The Codex on Well-being at Work provides the following calculation:
- The number of employees is calculated by dividing the total number of calendar days each employee has had a labour contract over the past four quarters by 365
- When the actual working hours of an employee do not amount to 75% of a full-time working schedule, the number of calendar days is divided by two
- For individuals undergoing vocational training that includes work, for individuals bound by a training agreement, for interns, and for students following a course of study that includes a certain form of work, the “number of employees” is calculated by dividing the total number of hours they work by 1,750
The reintegration programme
If you as an employer initiate a reintegration programme (voluntarily or not), you must also contact the occupational physician for this.
How do you initiate the reintegration programme?
The occupational physician will then invite your employee by registered letter for an investigation. An employee with work potential who fails to respond to an invitation three times may lose their allowance. Therefore, your employee with work potential must cooperate with the investigation to avoid sanctions.
What must you do as an employer after the occupational physician's investigation?
If the investigation by the occupational physician indicates that your employee could resume work with adapted tasks, you as the employer must investigate whether you have such work available. You should base this investigation on the recommendations of the occupational physician.
As an employer, you must specifically check what possibilities you have in your company to follow those recommendations. If you can follow those recommendations, you should provide your employee and the health insurance doctor with the plan in a timely manner.
If you do not have the possibility to establish a concrete plan based on the recommendations, that is acceptable, but you must indicate in a motivated report why you cannot establish a reintegration plan.
Do you want more information about the reintegration programme? You can always consult our file on Lex4You.
The termination of the labour contract due to medical force majeure
If your employee is continuously unable to work for a long time, you may consider terminating the labour contract due to medical force majeure. However, you as the employer cannot assess this possibility yourself. Certain conditions must be met for this. If they are met, you can request an investigation by the occupational physician.
Your employee must be continuously unable to work for six months. Additionally, there must also be no ongoing reintegration programme.
What is the procedure to establish medical force majeure?
If those conditions are met, you can decide to have it investigated whether your employee can still work. You must inform your employee about the decision to conduct this investigation via a registered letter. You should also notify the occupational physician in the same manner, as they must carry out the investigation. Your employee may also request such an investigation from the occupational physician.
After your registered letter, the occupational physician will invite your employee to investigate whether they are permanently unable to work or not. Your employee may appeal against the decision of the occupational physician.
If the occupational physician has determined permanent incapacity and the appeal period has expired, you can terminate the labour contract due to medical force majeure.
What does it cost to terminate due to medical force majeure?
If you as the employer unilaterally proceed with such a termination, you do not pay a notice period, but you do have to pay a compensation of 1,800 euros to the Return-to-Work Fund. In the case of a termination by mutual agreement, you are not liable for that compensation. This may change, but currently, that has not happened yet.
You can find more information about medical force majeure in our file on Lex4You.
The procedure for terminating due to medical force majeure is not always straightforward. Our Securex Legal Advisors can assist you throughout this process.
What does Securex do for you?
If you have questions about the investigation into work potential and the initiation of a reintegration programme, you can always contact your External Service for Prevention and Protection at Work.
The same applies to the investigation into permanent incapacity in the context of medical force majeure. In that procedure, you can have your Securex Legal Advisor assist you. You can contact them via myHR@securex.be.
