The assessment of fitness to work and the role of occupational health were redesigned by the legislator, considering the necessary conciliation of the protection granted to employees in respect of their health with economic imperatives.
Thus, a new balance between the issues involved has been established, under which occupational health is intended to be preventive and attentive to both the employee and the employer, to which new recourses and opportunities for dialogue with the institution are conferred.
The essential contributions of this new law reside notably in:
- The identification of risk positions (notably by the introduction of medical questionnaires for employees but also by the establishment of a risk positions’ list that will be determined by sovereign ordinance) which will determine the triggering of the initial medical examination of the employee by an occupational physician. If the medical examination prior to the hiring will remain for the identified risk positions, it can intervene within three years from the hiring for the other employees;
In addition, this law introduces amendments concerning incapacity, which ones were expected by both employers and employees, and reflected especially by:
- A more reasoned use of medical unfitness’ declarations: from now on, the occupational physician can only declare the definitive medical unfitness of an employee at his workstation if he has carried out a study of this post and the conditions of his work in the company as well as a medical examination of the employee. If the maintenance of the employee at his workstation entails an immediate danger to his health or safety or of any other person, the occupational physician may however declare the medical unfitness at the end of the first medical examination.
- the introduction of a right for both the employee and the employer to challenge the declaration of capacity or incapacity in front of a medical board established by occupational medicine;
- The introduction of a specific compensation scheme for employees between the day of the declaration of permanent incapacity and the reclassification or notification of the dismissal of the employee according to their medical situation;
The dispositions of the new Law No. 1.451 will enter into force on July 14, 2018. The changes made require changes in the practices of human resources departments in companies.
The social law team of CMS Pasquier Ciulla & Marquet remains at your disposal to inform, advise and assist you in the context of these changes.