Job retention law leads to unwanted side-effects

Source: Ministry of Labour and Employment (Ministère du travail et de l’emploi), Activity reports; General Social Security Inspectorate (Inspection générale de la sécurité sociale, IGSS), ‘Invalides et actifs résidents’; Employment Administration (Administration de l’emploi, ADEM), data on active measures

Aims of work incapacity legislation

By introducing the Law on work incapacity and returning to work, the government sought to increase the possibilities of remaining in the workplace for people applying for invalidity benefit, by offering:

• workers the option of continuing their job under conditions adapted to their altered state of health, with the same salary;

• grants to companies that are willing to retain older workers, in order to reduce the high cost of workers with reduced working capacity and to encourage employers to retain such workers.

Internal reclassification

Since the legislation came into effect, companies have been obliged to reintegrate a worker who has health problems – a system referred to as ‘internal reclassification’. For the first time, companies were obliged to have their quotas of workers with reduced working capacity monitored, whereas up until 2002 companies were given the option of taking on a disabled worker or one with a reduced working capacity.

The new, more restrictive approach has caused a certain resistance among employers about having to accept the internal reclassification of workers with reduced output, ‘at a time when things are becoming more and more competitive’. Moreover, it has led to a practice whereby companies are searching for employees who could count as disabled or reclassified workers under the legislation, in order to fill the required quotas.

For employers, an appeal procedure has since been introduced regarding compulsory internal reclassifications. On this basis, employers can oppose being forced to ‘create a specific job which is adapted to a particular worker’s remaining working capacity’, or plead that ‘serious losses’ will be incurred as legitimate grounds for rejecting the internal reclassification.

From the employee’s perspective, the objective of appealing the legal provisions varies somewhat more, although in most cases the employee in question wishes to stop work.

External reclassification

‘External reclassification’ refers to cases where the employee is registered as a jobseeker. These provisions are more difficult to implement and the chances of recruitment have been shown to be very slight or largely the same as those of an older unemployed person or jobseeker, or of a disabled jobseeker.

Evaluation of a person’s incapacity to work

In theory, the Law of 25 July 2002 could be seen as a positive step. However, in practice it has encouraged ‘alternative ways out’ of working life, mainly among workers aged 50 years and over. This reality is reflected in:

• the high take-up of invalidity claims and early exit measures;

• the fact that the proportion of internal reclassifications amounts to only about 25% (Table 2);

• the fact that extended periods of time off work, with unemployment lasting up to 12 or even 24 months, scarcely improves people’s chances of being re-employed: most of those reclassified externally are likely to become unemployed.