Burden of payment for financial benefits in case of incapacity for work
Employer
In the event of an employee's incapacity for work, the employer is obliged to continue paying the salary until the end of the month in which the 77th day of incapacity for work is reached, calculated over a reference period of 18 consecutive months.
For the calculation of the 77 days, the calendar days (and not the working days) on which the employee was declared unfit for work are taken into account.
The calculation of the 77 days is made over a period of 18 consecutive months immediately preceding the current month (including the current month).
The 77-day condition is reviewed each month to determine who is responsible for paying the employee, who is unable to work, for the following month. This control is especially important in the case of interrupted periods of sickness.
CNS - National Health Fund
The CNS compensates the employee directly from the month following the month in which the 77th day of incapacity for work is reached, calculated over a period of 18 consecutive months. The financial benefits are granted on the opinion of the Social Security Medical Board (Contrôle médical de la sécurité sociale/CMSS).
The employer ceases to pay the salary of the employee who is unable to work as long as the CNS is responsible for compensation.
The CNS establishes the cumulative statement of incapacity for work on the basis of the monthly declarations made by the employer and the medical certificates it has received from employees. It is therefore important that all the declarations are made accurately and on time in order to determine properly who is responsible for paying the insured person's salary when they are ill.
The CNS informs the employer and the employee if the responsibility for paying the salary for the month in question changes, i.e. to the CNS or back to the employer.
Example
Is the month M (e.g. December 2021) payable by the employer or by the CNS?
It must be calculated whether the employee reaches 77 sick days in the month M -1 (e.g. November 2021).
For this calculation, all sick days declared over an 18-month period preceding M (e.g. December 2021) are taken into account, i.e. between M -19 (e.g. June 2020) and M -1 (e.g. November 2021).
If the 77 days of sick leave are reached in M -1 (e.g. November 2021), the burden of paying the salary for the month M (e.g. December 2021) falls on the CNS and no longer on the employer.
On the other hand, if the 77 days are not reached between M -19 (e.g. June 2020) and November M -1 (e.g. November 2021), the employer must pay the salary for M (e.g. December 2021) and not the CNS.
Exceptions to the principle of continued payment of salaries by the employer
Termination of the employment contract
In the event of termination of the employment contract (e.g. fixed-term employment contract or temporary employment contract, end of notice period), the employer is only obliged to pay the financial compensation until the end of the employment contract.
In the event of termination of membership, entitlement to financial benefits shall continue provided that:
- the insured person was insured for an uninterrupted period of six months (with an interruption of less than eight days allowed) immediately preceding the termination of the insurance ;
- the disaffiliated person does not receive income from a professional activity or replacement income during the period of incapacity.
In order to prove that the insured person has no other income during the period of incapacity, the insured person must provide CNS with a sworn stament using a standard form sent out by CNS to the insured person.
Maternity leave, exemption from work and adoption leave
Continuation of payment by the employer does not apply to :
- Maternity leave
- Exemption from work for pregnant women
- Adoption leave in the case of adoption of a child
In these three cases, the CNS is responsible for paying the salary directly from the first day of absence from work, if all the conditions are met.
Suspension of entitlement to financial benefits
The CNS may suspend the payment of financial benefits if the insured person :
- fails, without valid reason, to attend a summons from the Social Security Medical Board ;
- fails, without valid reason, to undergo a medical examination as part of a redeployement procedure ;
- stays abroad without prior authorisation from the CNS ;
- is in custody.
Fit for work
If the Social Security Medical Board considers that the insured person is fit for work, the CNS will notify the insured person in writing. This decision means that certificates of incapacity for work issued in the next twelve weeks will not be compensated by the CNS. However, if the insured person submits a certificate that is due to a new medical fact that is justified in detail by the attending physician, the certificate may still be accepted.
End of entitlement to financial benefits in case of incapacity for work
Maximum of 78 weeks
The entitlement to financial benefits is limited to a total of 78 weeks for a reference period of 104 weeks.
There is no longer a distinction according to the type of illness: All periods of personal incapacity for work due to illness, occupational disease or an accident at work occurring during the reference period are taken into account.
At the beginning of each period of incapacity for work, it is checked for each calendar day of incapacity for work whether the limit of 78 weeks has been reached. The financial benefits are no longer due from the day on which the total duration of incapacity for work exceeds 78 weeks.
A few weeks before the 78 weeks of incapacity for work are reached, the CNS sends the insured person a theoretical simulation of when the entitlement to financial benefit will end if the person remains continuously ill.
Permanent invalidity
If the Social Security Medical Board establishes permanent invalidity, entitlement to financial benefits ceases at the end of the month in which the medical officer of the CMSS determines that the person is permanently incapable of work.
Professional redeployment
In the event of professional redeployment (internal or external), entitlement to financial benefits ends on the date of notification of the decision by the joint commission on redeployment.