Can you refuse your employee’s sick report?

As an employer, you generally cannot refuse a sick report just because you doubt it. Whether an employee is unfit for work is a medical question for the company doctor (bedrijfsarts); the exception is a report that is clearly not about the employee’s own illness, such as staying home to look after a sick child.

What you can do is call in the company doctor quickly, apply your own reporting and control rules, and suspend wage payment if the employee does not follow those rules. If you and your employee still disagree, an expert opinion (deskundigenoordeel) from the UWV is the route to an independent assessment. This article explains the main situations and what you can do in each of them.

What does the law say about wages during sickness?

Under Article 7:629 of the Dutch Civil Code (Burgerlijk Wetboek, BW), an employee who is unfit for work because of illness keeps a right to at least 70 percent of the wage for up to 104 weeks. In the first 52 weeks, this must be at least the statutory minimum wage. Many employment contracts and collective agreements (cao) provide for a higher percentage.

An employee is unfit for work if, because of illness, he or she cannot do the work agreed in the employment contract. The test is the employee’s own job, not work in general. The same article lists the situations in which the right to wages lapses or can be suspended. You can read the full text on wetten.overheid.nl.

Why do employers doubt a sick report?

Doubts usually arise from a pattern or a context: an employee who often reports sick on Mondays or Fridays, or who reports sick just after a conflict or a poor appraisal. Those doubts are understandable, but they are not enough to refuse the report.

Refusing a report and stopping the wage is risky. If it later turns out that the employee was in fact unfit for work, you will owe the wage in full, and the employee can claim a statutory increase for late payment. It is usually better to accept the report and have the company doctor assess it straight away.

What if the employee did not follow the reporting rules?

If the employee did not report sick in the way your rules require, you may suspend wage payment until the employee complies. You may not keep the wage permanently for that reason alone.

In general, an employee should report sick personally, and in good time, to the employer. You can then ask how long the absence is expected to last and make arrangements for the work. If your employment contract or staff handbook contains specific reporting and control rules (controlevoorschriften), the employee must follow them, provided they are reasonable and have been given in writing.

Under Article 7:629(6) BW, you may suspend wage payment for as long as the employee does not comply with those rules, for example by being unreachable or by not attending the company doctor. Once the employee complies again, you must pay the wage for the suspended period after all. Always announce a suspension in writing and explain which rule was broken.

What if the employee is not ill but stays at home?

If it is clear from the employee’s own explanation that he or she is not ill, you may refuse the sick report. The absence then has another cause, which may fall under a form of leave.

A typical example is an employee who reports sick because her child is ill and she cannot arrange care. She is not unfit for work herself. In such a case she may be entitled to emergency leave (calamiteitenverlof) or short-term care leave (kortdurend zorgverlof) under the Work and Care Act (Wet arbeid en zorg). Agree clearly with the employee which form of leave applies, and confirm it in writing.

What if the employee is ill but could still do the work?

If the employee is ill but can still do his or her own job, there is no unfitness for work and no right to sick pay. The difficulty is that you, as the employer, cannot make that medical judgement yourself.

Consider an employee who has sprained an ankle but has a desk job. In principle, that employee could still work, perhaps with some adjustments such as working from home or a different workstation. The sensible first step is to agree on this together.

If you cannot reach agreement and the employee maintains that he or she cannot work, accept the report. Then ask the company doctor at once to advise on whether the employee can do his or her own job or other suitable work. If the employee refuses suitable work without good reason, Article 7:629(3) BW allows you to stop the wage for that period.

What if the illness is the employee’s own fault?

The law lets you stop paying wages only if the employee caused the illness intentionally. That is rare and difficult to prove, so in most cases of own fault the statutory wage remains payable.

Think of an employee who becomes ill after cosmetic surgery or excessive alcohol use. Under Article 7:629(3) BW, there is no right to wages if the illness was caused intentionally. The intent must, however, relate to becoming ill, not just to the behaviour itself. Courts rarely accept that.

If you pay more than the statutory 70 percent during sickness, you can limit the risk in the employment contract. You can agree that the employee is not entitled to the supplement above the statutory amount if the illness is caused by his or her own fault or negligence. Check whether a collective agreement applies, because it may not allow such a clause.

What if the sick report follows a conflict or a poor appraisal?

First try to talk to the employee about the underlying problem. If that does not work, accept the report and call in the company doctor immediately.

The company doctor can assess whether the employee is really unfit for work, or whether the problem is a workplace conflict that should be resolved by other means. Company doctors often advise a conversation or mediation in such cases. The doctor can also advise on a quick return to work.

What may you ask about the illness?

You may not require the employee to tell you what the illness is or how it is being treated. Not knowing the diagnosis is therefore never a reason to refuse a sick report.

This follows from the privacy rules under the GDPR, as applied by the Dutch Data Protection Authority (Autoriteit Persoonsgegevens). You may ask practical questions: how long the absence is expected to last, where and how the employee can be reached, whether there are current appointments, whether the employee can still do some work, and whether the illness was caused by an accident involving a liable third party. The employee may share medical details voluntarily, but you may not record them.

The employee must cooperate with an examination by the company doctor and give the doctor the medical information needed for the assessment. If the employee refuses, you may suspend the wage until he or she cooperates.

What if you and the employee keep disagreeing?

Either of you can ask the UWV for an expert opinion (deskundigenoordeel) on whether the employee is fit for work or on reintegration efforts. If you later go to court about the wage, Article 7:629a BW requires the employee to submit such an opinion with the claim.

The expert opinion is not binding on the court, but it carries weight. For an employer, requesting it early is often the best way to break a deadlock with an employee who insists that he or she cannot work while the company doctor says otherwise.

In summary

• You generally cannot refuse a sick report; the company doctor assesses whether the employee is unfit for work.
• If the employee is clearly not ill, for example because a child is sick, you may refuse the report and discuss leave instead.
• If the employee breaks reasonable written control rules, you may suspend the wage until he or she complies.
• You may not require the employee to tell you the nature of the illness.
• In case of disagreement, a UWV expert opinion is the way to an independent assessment.

At Law & More we advise employers and employees on sickness, wage suspension and reintegration. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.

How Law & More can help you with this is explained on our employment lawyer page.