Employees have certain obligations to fulfill when they become ill and are sick. A sick employee must report sick, provide certain information and comply with further regulations. When absenteeism occurs, both employer and employee have rights and obligations. In outline, these are the primary obligations of the employee:
- The employee must report sick to the employer when sick. An employer must specify how the employee can do this. Agreements on absence are usually laid down in an absence protocol. An absence protocol is part of the absence policy. It states the rules for absenteeism and how sick reports, absenteeism registration, absenteeism supervision, and reintegration in case of (long-term) absenteeism.
- As soon as the employee is better, he should report back.
- During illness, the employee must inform the employer about the healing process.
- The employee must also be available for check-ups and respond to a call from the company doctor. The employee is obliged to cooperate in reintegration.
Within some fields of work, there may be a collective agreement. These may contain agreements on absenteeism. These agreements are leading for the employer and the employee.
During the sickness period: working on recovery and reintegration.
Both the employee and the employer have an interest in the employee’s recovery and reintegration. Recovery allows the employee to resume their work and avoid becoming unemployed. In addition, illness can lead to a lower income. For the employer, a sick employee means a lack of workforce and an obligation to continue paying wages without any quid pro quo.
If it turns out that an employee will be ill for a longer time, the employee must cooperate in the reintegration process. During the reintegration process, the following obligations apply to the employee (Section 7:660a of the Civil Code):
- The employee should cooperate in establishing, adjusting, and implementing the action plan.
- The employee should accept an offer from the employer to perform work that qualifies as suitable work.
- The employee should cooperate with reasonable measures that see to reintegration.
- The employee should inform the occupational health and safety service about his absence.
The reintegration process has the following stages:
- The employee falls ill. They must report sick to the employer, of which the occupational health and safety service is notified immediately (within seven days).
- Before six weeks pass, the occupational health and safety service assesses whether there is (potentially) long-term sickness absence.
- Within six weeks, the health and safety service provides a problem analysis. With this analysis, the health and safety service provides information on absenteeism, the circumstances involved, and the possibilities for reintegration.
- Before eight weeks pass, the employer agrees on an action plan with the employee.
- Regularly the action plan is discussed between the employer and employee at least once every six weeks.
- After 42 weeks, the employee will be reported sick to the UWV.
- A first-year evaluation follows this.
- After about 88 weeks of illness, the employee will receive a letter from the UWV with more information about applying for WIA benefits.
- After 91 weeks, the final evaluation follows, describing the state of reintegration.
- No later than 11 weeks before the WIA benefit is due to start, the employee applies for the WIA benefit, requiring the reintegration report.
- After two years, the continued payment of wages stops, and the employee may receive WIA benefits. In principle, the employer’s obligation to continue paying wages ends after two years of illness (104 weeks). The employee may then be eligible for WIA benefits.
Continued pay in case of illness
The employer must continue to pay the sick employee with a permanent or temporary contract at least 70% of the last-earned salary and holiday allowance. Is there a higher percentage in the employment contract or collective agreement? Then the employer must comply. The duration of continued payment depends on a temporary or permanent contract, a maximum of 104 weeks.
The rules during holidays
A sick employee accrues as many holidays as an employee who is not ill and may take holidays during illness. To do so, however, the employee must seek permission from the employer. It cannot be easy to assess this yourself. Therefore, the employer can ask the company doctor for advice. The company doctor can determine the extent to which that holiday contributes to the sick employee’s health. The employer then decides, partly based on this advice, whether the sick employee can go on holiday. Does the employee fall ill on holiday? The rules also apply then. Even during the holiday, the employee is obliged to report sick. The employer can immediately start absenteeism counseling if the employee is in the Netherlands. Is the employee abroad ill? Then they must report sick within 24 hours. The employee must also remain accessible. Agree on this in advance.
What if the employee does not comply?
Sometimes a sick employee does not keep to the agreements made and therefore does not cooperate sufficiently in their reintegration. For example, if the employee is abroad and has failed to show up for their company doctor’s appointment several times or refuses to perform suitable work. As a result, the employer runs the risk of a penalty from UWV, namely continued payment of wages during illness for up to a third year. An employer can take measures in this case. The advice is to start a conversation with the employee and clearly state that they must cooperate in reintegration. If this does not help, the employer can opt for a wage suspension or wage freeze. The employer makes this known by sending the employee a registered letter about this. Only after this can the measure be implemented.
What is the difference between a wage freeze and a wage suspension?
To get the employee to cooperate, the employer has two options: to suspend or stop the salary entirely or partially. Regarding the right to wages, a distinction should be made between reintegration and control obligations. Non-compliance with reintegration obligations (refusing suitable work, obstructing or delaying recovery, not cooperating in drawing up, evaluating, or adjusting an action plan) can lead to a wage freeze. The employer does not have to continue paying wages for the period when the employee does not fulfill his obligations, even if the employee later does perform his duties (art 7:629-3 BW). Nor does the right to wages exist if the employee is not (or has not been) unfit for work. However, suppose the employee fails to comply with the monitoring requirements (not appearing at the company doctor’s surgery, not being available at the prescribed times, or refusing to provide information to the company doctor). In that case, the employer may suspend the payment of wages. In that case, the employee will still be paid his full salary if he complies with the monitoring requirements. With a wage freeze, the employee’s entitlement to pay lapses. The employee only receives wages again the moment he complies with the obligations. With a wage suspension, the employee remains entitled to wages. Only its payment is temporarily stopped until he fulfills his obligations again. In practice, wage suspension is the most commonly used means of pressure.
Difference of opinion
The employer may disagree if the company doctor assesses that the employee is not sick (anymore). If the employee disagrees, an expert opinion can be requested from an independent institution.
An employee calls in sick after a conflict.
There may be situations where the employer differs from the employee on when work can be resumed (partially). As a result, absenteeism may lead to conflict. On the contrary, a conflict in the workplace can also be the reason for calling in sick. Does the employee report ill after a clash or disagreement within the workplace? If so, ask the company doctor to assess whether the employee is unfit for work. A company doctor may suggest a rest period depending on the situation and health complaints. During this period, attempts can be made, possibly through mediation, to resolve the conflict. Do the employer and employee not agree, and is there a desire to terminate the contract with the employee? Then a conversation regarding a termination agreement usually follows. Is this not successful? Then the employer will ask the subdistrict court to terminate the contract with the employee. Here, it is essential that an accurate absenteeism file is built up on the employee.
The employee is entitled to a transition allowance (compensation upon dismissal) in both a termination agreement and termination through the subdistrict court.
Sick leave on a temporary contract
Is the employee still sick when the employment contract expires? Then the employer no longer has to pay them wages. The employee then leaves unhappy. The employer must report the employee’s sickness to the UWV on their last working day. The employee then receives a sickness benefit from the UWV.
Advice on absenteeism
Being unable to work due to illness often causes a lot of ‘hassle .’It is important to be alert, then. What rights and obligations apply, and what is still possible and is no longer possible? Do you have a question about sick leave and would like advice? Then contact us. Our employment lawyers will be happy to help you!