Long-term sick employees: new procedure for medical force majeure

In our blog post “Revised Return-to-Work Procedure for Employees Unable to Work,” we already provided information about the recent changes to the return-to-work procedure for employees who are on long-term leave from work due to illness or an accident. However, if an employee is permanently unable to perform their job and no suitable, adapted work can be offered, the employment contract may be terminated due to medical force majeure. This can only occur, however, after completing a specific procedure in which the prevention advisor-occupational physician intervenes. In 2022, this procedure was completely separated from the reintegration process. The requirement that one must first complete the reintegration process in order to terminate the employment contract due to medical force majeure is therefore now a thing of the past. Through the new procedure, both the employer and the employee can request an evaluation by the occupational health and safety advisor to determine whether it is definitively impossible for the employee to return to work with the employer. However, there are two strict conditions for initiating the procedure. First, logically, no reintegration program may be currently in progress. Additionally, the employee must have been on disability leave for at least 9 consecutive months. Periods of return to work lasting up to 14 days are included in this calculation. Following the assessment, the occupational health and safety advisor must decide whether or not the employee is permanently fit for the agreed-upon work. An employee who disagrees with the occupational health and safety advisor’s decision has the option to file an appeal. If no appeal is filed, or after the court has upheld the decision, the employer and the employee—or either party—may determine that the employment contract is terminated. Please note that the termination of an employment contract due to medical force majeure is not considered a dismissal. As a result, no notice period or severance pay is required, although the parties may, of course, always reach a mutual agreement. Do you have questions about how this procedure works? Please contact one of our specialists.