Reintegration after illness: employee obligations and wage sanctions

A sick employee must actively cooperate in reintegration: follow reasonable instructions, help draw up the plan of action and accept suitable work (Article 7:660a of the Dutch Civil Code, BW). If you refuse without good reason, your employer can suspend or stop your wages (Article 7:629 BW), but only after warning you without delay; the employer in turn risks a wage sanction from the Employee Insurance Agency (UWV) of up to 52 extra weeks of sick pay.

What is the framework for reintegration?

A sick employee is entitled to at least 70% of their wages for 104 weeks, and at least the statutory minimum wage in the first 52 weeks (Article 7:629(1) BW). During that period both parties must work towards a return to work; the steps are set by the Gatekeeper Improvement Act (Wet verbetering poortwachter).

The main milestones are:

• Within 6 weeks: if long-term absence threatens, the employer asks the company doctor (bedrijfsarts) or occupational health service for an assessment, the problem analysis (see also illness and work pressure).
• Within 2 weeks after that: employer and employee draw up a written plan of action (plan van aanpak).
• Periodically, and at the end of the first year: the plan is evaluated and adjusted where needed.
• After 42 weeks: the employer reports the absence to UWV, at the latest on the first day after the illness has lasted 42 weeks.
• Week 93: the employee applies for a WIA benefit, at the latest 11 weeks before the end of the 104-week waiting period.
• Week 104: the sick-pay obligation ends; if the employee is still (partly) unfit, a WIA benefit can start.

If return to the own job or other suitable work with the own employer is not possible (first track), the employer must in good time explore work with another employer (second track).

Which obligations does the employee have?

Under Article 7:660a BW, a sick employee must follow reasonable instructions of the employer or an expert it engages, cooperate in drawing up, evaluating and adjusting the plan of action, and perform suitable work the employer offers. Under Article 7:629(3)(b) BW the employee also may not obstruct or delay recovery.

In addition, the employee must follow the employer’s reasonable written monitoring rules, such as attending the company doctor and being reachable. The employer may not ask about the nature or cause of the illness or make its own medical judgment; that is the company doctor’s role.

What is the difference between a wage suspension and a wage stop?

A wage suspension is temporary; a wage stop means the wages over that period are lost for good. Confusing the two can cost the employer the right to the stronger measure.

Wage suspension (Article 7:629(6) BW)

The employer may suspend payment while the employee does not follow written reasonable rules on providing the information needed to determine the right to wages, for example by not attending the company doctor. Once the employee complies and turns out to have been unfit, the withheld wages must be paid after all.

Wage stop (Article 7:629(3) BW)

The employee has no right to wages for the period during which they, without good reason:

• obstruct or delay their recovery;
• do not perform suitable work they are able to do;
• refuse to cooperate with reasonable instructions or measures aimed at suitable work;
• refuse to cooperate in the plan of action;
• file the WIA application late.

The right to wages also does not exist if the illness was caused intentionally or results from a defect about which false information was given in a pre-employment medical examination (Article 7:629(3)(a) BW). Once the employee complies again, wages are due from that moment, but the withheld amount is not repaid.

Why must the employer warn the employee in time?

Under Article 7:629(7) BW, the employer loses the right to rely on a suspension or stop if it does not inform the employee without delay once it suspects, or should suspect, the ground for it. In practice this means a written notice stating whether it is a suspension or a stop, and why.

If the employer writes “suspension” while it means a stop, the employee may rely on what was written. Missing a company doctor appointment once normally justifies a suspension first; a stop comes into view when the employee persistently fails to comply.

Can the employer stop the full wage?

Yes, in principle. The Supreme Court (Hoge Raad) ruled on 6 June 2014 that an employee who refuses suitable work without good reason loses the full wage, also for the hours in which they remain partly unfit (ECLI:NL:HR:2014:1341).

Under certain circumstances, relying on a full stop may be unacceptable by standards of reasonableness and fairness (Article 6:248(2) BW). The Supreme Court added that partial unfitness alone is not such a circumstance, so the exception is applied restrictively.

What other consequences can the employee face?

The most serious is the loss of dismissal protection. The prohibition on terminating the contract during illness does not apply if the employee refuses without good reason to comply with Article 7:660a BW, and the employer has warned them in writing or has stopped the wages for that reason (Article 7:670a(1) BW).

The employer still needs UWV permission or a dissolution by the subdistrict court (kantonrechter) for the dismissal itself. A well-documented file of warnings and wage measures is therefore decisive. Insufficient cooperation can also affect the WIA application and how UWV assesses the reintegration file.

What is the UWV wage sanction for the employer?

When the employee applies for WIA benefit, UWV checks whether the reintegration efforts were sufficient. If the employer fell short without good reason, UWV extends the sick-pay period by at most 52 weeks so that the employer can repair the shortcoming (Article 25(9) of the Work and Income (Capacity for Work) Act, WIA).

Typical shortcomings are a plan of action drawn up too late, a second track started too late, or a file without evaluations. A complete, timely file is the best protection against a third year of sick pay.

What if employer and employee disagree?

Either party can ask UWV for an expert opinion (deskundigenoordeel), for example on whether offered work is suitable or whether the employee does enough to reintegrate. The opinion is not binding, but it carries weight.

An employee who claims sick pay in court must in principle submit such a UWV expert opinion with the claim (Article 7:629a BW), unless the incapacity or compliance is not disputed. Read more in when reintegration fails.

What should you check as an employee?

• Do you attend every company doctor appointment, or report in time and with reasons if you cannot?
• Have you signed and contributed to the plan of action within two weeks after the problem analysis?
• Is offered work actually suitable given the company doctor’s advice? If not, say so in writing with reasons.
• Does a letter from your employer speak of a suspension or a stop, and on which ground of Article 7:629 BW?
• Have you considered asking UWV for an expert opinion before refusing work?

What should you check as an employer?

• Did you ask for the problem analysis within six weeks and draw up the plan of action within two weeks after it?
• Are your monitoring rules in writing and known to the employee?
• Did you warn the employee without delay, and state clearly whether you suspend or stop wages?
• Did you start the second track in time if return within your organisation is not realistic?
• Is every step, evaluation and warning on file for the UWV assessment in week 93?

What can we do for you with reintegration and wage sanctions?

Our employment lawyers advise employers and employees during reintegration under Dutch employment law.

• We review the reintegration file against the Gatekeeper Improvement Act milestones.
• We draft the written warning, suspension or wage stop letter on the correct ground.
• We assess whether a wage measure against you is lawful and draft the objection.
• We prepare the request for a UWV expert opinion.
• We conduct wage claim or dismissal proceedings before the subdistrict court.

Summary

• A sick employee must follow reasonable instructions, cooperate in the plan of action and accept suitable work (Article 7:660a BW).
• A wage suspension (Article 7:629(6) BW) is temporary; a wage stop (Article 7:629(3) BW) means the wages are lost for that period.
• The employer must warn the employee without delay (Article 7:629(7) BW).
• A refusal of suitable work can justify a full wage stop (ECLI:NL:HR:2014:1341).
• An employer that falls short risks UWV extending sick pay by up to 52 weeks.

Frequently asked questions