As an employer, can you refuse to report your employee sick?

It regularly happens that employers have doubts about their employees reporting their illness. For example, because the employee often reports sick on Mondays or Fridays or because there is an industrial dispute. Are you allowed to question your employee’s sickness report and suspend payment of wages until it is established that the employee is actually ill? This is an important question that many employers face. It is also an important issue for employees. They are, in principle, entitled to continued payment of wages without any work being carried out. In this blog, we will look at a number of example situations in which you may refuse the sick report of your employee or what is best to do in the event of doubt.

Sick

The sickness notification has not been made in accordance with the applicable procedural rules

In general, an employee should report his or her illness personally and verbally to the employer. The employer can then ask the employee how long the illness is expected to last and, based on this, agreements can be made about the work so that it does not remain lying around. If the employment contract or any other applicable regulations contain extra regulations regarding the reporting of illness, an employee must, in principle, comply with these as well. If an employee does not adhere to the specific regulations to report sick, this can play a role in the question whether you, as an employer, have rightly refused the sick report of your employee.

Employee is in fact not ill himself, but reports sick

In some cases, workers report sick when they themselves are not actually sick at all. For example, you could think of a situation in which your employee reports sick because her child is ill and she cannot arrange for a babysitter. In principle, your employee is not ill or incapacitated for work. If you can easily determine from your employee’s explanation that there is another reason, other than the employee’s own work disability, that prevents the employee from showing up at work, you can refuse to report sick. In such a case, please take into account that your employee may be entitled to calamity leave or short-term absenteeism leave. It is important that you clearly agree which form of leave your employee will take.

Employee is ill, but the usual activities could still be carried out

If your employee reports sick and you can deduce from the conversation that there is actually an illness, but that it is not so serious that the usual work cannot be carried out, the situation is somewhat more difficult. The question is then whether there is an incapacity for work. An employee is only incapacitated for work if, as a result of a physical or mental disability, he or she is no longer able to do the work that he or she is supposed to do according to the employment contract. You can think of a situation in which your employee has sprained his ankle, but has normally already a seated work function. In principle, however, your employee could still work. In some cases, extra facilities may have to be made available. The most sensible thing to do is to make agreements about this with your employee. If it is not possible to reach agreements together and your employee maintains his position that he cannot work anyway, the advice is to accept the sick leave report and ask your company doctor or occupational health and safety physician directly for advice on the suitability of your employee for his own function, or for a suitable function.

Employee is ill through intent or own fault

There may also be situations in which your employee is ill through intent or own fault. For example, you could think of situations in which your employee undergoes cosmetic surgery or becomes ill as a result of excessive alcohol consumption. The law states that you, as an employer, are not obliged to continue to pay wages if the illness is caused by intent on the part of the employee. However, this intention must be seen in relation to becoming ill, and this will hardly ever be the case. Even if this is the case, it is very difficult for you as an employer to prove this. For employers who pay more than the legal minimum in case of illness (70% of the salary), it is wise to include in the employment contract that the employee is not entitled to the extra-legal part of the salary during illness, if the illness is caused by the employee’s own fault or negligence.

Employee is sick because of industrial dispute or poor assessment

If you suspect that your employee is reporting sick because of an industrial dispute or, for example, a recent poor assessment, it is wise to discuss this with your employee. If your employee is not open to a conversation, it is wise to accept the sick report and immediately call in a company doctor or occupational health and safety doctor. The doctor will be able to assess whether or not your employee is actually unfit for work and advise you on the possibilities of getting your employee back to work as soon as possible.

You do not have enough information to be able to assess the sickness report

You cannot oblige an employee to make announcements about the nature of his illness or the treatment thereof. If your employee is not transparent about this, this is no reason to refuse to report his illness. What you, as an employer, can do in that case is to call in a company doctor or occupational health and safety doctor as soon as possible. However, the employee is obliged to cooperate with the examination by the company doctor or occupational health and safety physician and to provide them with the necessary (medical) information. As an employer, you may ask when the employee expects to be able to return to work, when and how the employee can be reached, whether the employee is still able to do certain work and whether the illness has been caused by a liable third party.

Are you in doubt about your employee’s notification of illness or are you not sure whether you are obliged to continue to pay wages? Please contact the employment law lawyers of Law & More directly. Our lawyers can provide you with the right advice and, if necessary, assist you in legal proceedings. 

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