Sick employee or quiet quitter: the thin line in Dutch employment law

Under Dutch employment law the difference between a sick employee and a disengaged one is not decided by the employer. Incapacity for work (arbeidsongeschiktheid) is a medical judgement that only the company doctor (bedrijfsarts) can make, and it triggers wage continuation under article 7:629 of the Dutch Civil Code, a reintegration process and a dismissal ban. Quiet quitting is behaviour, not a condition: it has no legal status and belongs in performance management.

The thin line between sickness and disengagement

The two situations can look identical from a manager desk. Output drops, initiative disappears, the employee is harder to reach, and absences become more frequent. What separates them is the cause, and the cause determines which legal regime applies. Get it wrong in one direction and you pressure a genuinely ill employee, breach the wage continuation duty and hand them a claim; get it wrong in the other and you pay two years of sick pay to someone who was capable of working throughout.

The rule that resolves most of the difficulty is straightforward: whatever you suspect, you follow the sickness procedure. An employer opinion about someone health has no legal weight, and acting on a suspicion before the company doctor has assessed the employee is the single most expensive mistake in this area. The suspicion is not irrelevant, but it belongs in a different file, built on documented performance, and it is dealt with after the medical question has been answered.

What the law actually distinguishes

Sickness in the sense of article 7:629 of the Civil Code means being prevented from performing the agreed work as a result of illness. It is an involuntary state, it is assessed on functional limitations rather than on a diagnosis, and it brings with it a duty on both sides to work towards a return. Disengagement is a choice. An employee who does exactly what the contract requires and no more is not committing a breach of contract by that fact alone, because the employer instruction right under article 7:660 of the Civil Code extends to reasonable instructions within the scope of the job, not to unlimited discretionary effort.

That is why quiet quitting is a management problem with a legal tail rather than a legal problem in itself. It becomes legally relevant when performance falls below what the contract requires, when instructions are refused, or when the conduct amounts to a breakdown in the working relationship.

What the employer owes a sick employee

A sickness report sets a statutory machine in motion. Article 7:629 of the Civil Code obliges the employer to continue paying at least seventy per cent of the wage for a maximum of 104 weeks, and during the first fifty-two weeks that payment may not fall below the statutory minimum wage. Many collective labour agreements improve on this, typically to full pay in the first year and seventy per cent in the second; the agreement or the individual contract decides. The law also allows up to two waiting days at the start of a period of incapacity, provided that has been agreed.

Alongside the money come the reintegration duties under the Eligibility for Permanent Invalidity Benefit (Restrictions) Act, better known as the Wet verbetering poortwachter, and they run to a fixed calendar. The absence is reported to the occupational health service in the first week. The company doctor draws up a problem analysis by around the sixth week. Employer and employee agree a plan of approach (plan van aanpak) within eight weeks of the first day of sickness, and they evaluate it at least every six weeks. In the forty-second week the employer notifies the Employee Insurance Agency (UWV). Around the first anniversary the parties carry out a first-year evaluation, which is the moment to decide whether reintegration with another employer, the second track, must be started. After 104 weeks the employee applies for a benefit under the Work and Income (Capacity for Work) Act, supported by the reintegration file.

The sanction for neglecting that process is severe and is applied in practice. If the UWV concludes that the employer made insufficient reintegration efforts, it imposes a wage sanction: the obligation to continue paying wages is extended by up to fifty-two weeks, and the dismissal ban is extended with it. Almost every wage sanction is traced back to a file that was thin rather than to an employer that did nothing; the documentation is the defence.

The dismissal ban, and its limits

During the first two years of incapacity the employer may not terminate the employment contract by notice. That ban is not absolute. It does not apply where the employee agrees to a termination by settlement agreement (vaststellingsovereenkomst), where a fixed-term contract simply expires, during a probationary period, on a summary dismissal for an urgent cause, on termination at pension age, or where the sickness began only after the UWV received the dismissal application. There is also an exception where the activities of the undertaking are wholly discontinued, although that exception is narrowly construed and does not cover the closure of one department.

Two further points matter. The ban blocks termination during sickness; it does not block a dismissal for a reason unrelated to the sickness once the two years have passed or once the employment ends for another lawful reason. And the transition payment (transitievergoeding) under article 7:673 of the Civil Code is due from the first day of employment, so it is payable on a dismissal after long-term incapacity as well, with compensation available to the employer from the UWV under the scheme for that situation.

Our overview of employee sickness rights sets out the position from the employee side, and the obligations of an employee during illness are dealt with separately.

Stopping and suspending the pay of a sick employee are not the same thing

This is where employers most often go wrong, and the mistake is expensive because it is usually irreversible. Article 7:629 of the Civil Code contains two different measures with two different consequences, and using the wrong word in the letter can cost the entire amount.

Suspension of pay (loonopschorting) is the measure of paragraph 6. It applies where the employee does not comply with reasonable written monitoring rules, so that the employer cannot establish whether there is any incapacity at all: not being at the address given, not answering the telephone at the agreed times, not attending the appointment with the company doctor. The obligation to pay is not extinguished; payment is deferred. As soon as the employee complies, the withheld wage must be paid retrospectively in full.

Stopping pay (loonstop) is the measure of paragraph 3, and it is a genuine loss of entitlement. It applies where the employee obstructs or delays recovery, refuses without good reason to perform suitable work, refuses to cooperate with reasonable reintegration measures or with drawing up, evaluating and adjusting the plan of approach, or where the incapacity was caused intentionally. Here the wage over the period concerned is not owed at all, and it does not come back when the employee changes course; the entitlement revives only for the future.

Two conditions apply to both. Paragraph 7 requires the employer to notify the employee immediately after it becomes aware of the ground; an employer that pays on for six weeks and then announces a retroactive stop cannot rely on the ground. And case law requires a clear prior warning: a letter that states the specific failure, the consequence, and the deadline for compliance. It also requires the right label. A letter that announces a suspension and then treats it as a stop is read against the employer, and the employee will be paid.

An employee who disagrees can bring a wage claim, and article 7:629a of the Civil Code obliges them to attach an expert opinion (deskundigenoordeel) from the UWV to that claim. Employers can request the same opinion, and it is often the sensible step before any measure at all: it is quick, inexpensive and gives an independent view on whether the employee is fit for the work offered. Our note on the legal actions available in employee sick claims sets out the procedural options.

The company doctor and the privacy wall

A sick employee is protected by data protection law as much as by employment law. Health data is a special category of personal data under the General Data Protection Regulation, and an employer may not process it. That is not a guideline; it is a prohibition with an administrative fine attached, and the Dutch Data Protection Authority has enforced it against employers who recorded diagnoses in absence systems. The company doctor exists precisely to bridge the gap: an independent medical professional who knows the medical facts, and who reports to the employer only in terms of what the employee can and cannot do.

When an employee reports sick, the employer may record the fact of the report, the expected duration, the telephone number and address during the absence, whether appointments already made can be kept, whether the absence relates to an accident for which a third party is liable, so that the employer can recover its wage costs, and whether one of the statutory safety-net provisions applies. That is the whole list. The employer may not ask about the diagnosis, the symptoms, the treatment or the cause, and may not record that information even if the employee volunteers it.

What you may ask the company doctor

The questions that produce usable answers are all about function and time, not about medicine.

A limitation such as no lifting above a stated weight, or a maximum of four hours a day at a screen, is information you may hold and must act on. The underlying condition is not. If you disagree with the company doctor advice you do not overrule it; you ask the UWV for an expert opinion. An employee who disagrees may ask for a second opinion from another company doctor, and the occupational health service must facilitate that unless there are compelling reasons not to.

Burnout, stress and the grey zone

Burnout is a legitimate ground for incapacity where the company doctor establishes functional limitations, and an employer is not entitled to second-guess that. What an employer can do, and should do, is separate the medical track from the conflict track. Where an absence follows a disagreement about workload, a poor appraisal or a reorganisation, the company doctor may well conclude that there is a labour conflict rather than an illness, and the applicable guidance points towards mediation and a structured conversation rather than sick leave. That advice is worth acting on quickly: a conflict parked in the absence system for months is far harder to resolve than one addressed in week two.

A compliant way to handle a suspected case

The work that decides whether you are dealing with a sick employee or a disengaged one is done before the sickness report. A documented record of performance conversations, of expectations that were set and not met, and of support that was offered, is what allows an employer to show later that the concerns were real and predated the absence. Without it, any action taken after the sickness report looks like retaliation, and a court will read it that way.

Once the report comes in, the sequence is fixed.

1. Apply your own absence procedure. Check that the employee reported in the prescribed way and at the prescribed time. If the monitoring rules were not followed, address that in writing on its own terms, and remember the difference between suspension and stoppage.
2. Refer to the company doctor without delay. This is not optional and it is not a signal of distrust; it is the statutory route to an assessment, and delay counts against you in a UWV review.
3. Keep documented contact. Contact during sick leave is expected, not intrusive, provided it is about wellbeing and the return to work rather than about outstanding tasks. Record what was discussed and when.
4. Draw up the plan of approach within eight weeks and evaluate it on schedule. Offer suitable work in writing where the company doctor says it is possible, and record the response.
5. Escalate through the statutory instruments, not around them: an expert opinion from the UWV where the medical picture is disputed, a formal warning where cooperation fails, and only then a wage measure.

Refusal to cooperate is the point at which the two tracks separate. An employee who repeatedly misses appointments with the company doctor, withholds information about functional limitations, or obstructs the plan of approach, is providing the ground the law requires. Document each instance, warn in writing, state the consequence, and act consistently.

When it is genuinely a performance problem

If the company doctor concludes that the employee is fit for work and the real issue is engagement, the file moves to ordinary employment law, and Dutch law is demanding here as well. Dismissal requires a reasonable ground from the closed list in article 7:669 of the Civil Code, plus the absence of a suitable alternative position, and it is tested in advance either by the UWV or by the subdistrict court, depending on the ground.

For unsuitability for the job, ground d, the employer must show that the employee was informed of the shortcomings in good time, was given a genuine opportunity to improve through a documented improvement plan of realistic length and with real support, and that the unsuitability is not the result of insufficient care for working conditions or training. An improvement plan written after the decision to part company has been taken is transparent to a court and fails.

Where the relationship itself has broken down, ground g may be available, and since 2020 the cumulation ground i allows a combination of grounds that are each incomplete, at the price of an additional payment of up to half the transition payment on top of it. Culpable conduct, ground e, is a high threshold and is reserved for conduct that is genuinely blameworthy; simply doing the minimum is not. In practice a substantial proportion of these files end in a negotiated settlement agreement (vaststellingsovereenkomst), which is lawful and often sensible, provided it is drafted so that the employee retains entitlement to unemployment benefit: the initiative must come from the employer, the statutory notice period must be observed in the end date, and the employee must not be described as culpable. The employee also has a statutory right to reconsider and revoke the agreement within fourteen days of signing, and that right must be mentioned in the document, failing which the period is extended. None of this is negotiable drafting; it is the difference between a clean exit and a benefit refusal that lands back on the employer desk. The wider framework is set out in our overview of Dutch labour law.

What the employee owes in return

The Dutch system is built on reciprocity, and the employee side of it is often forgotten. Article 7:660a of the Civil Code obliges an employee who is unfit for work to cooperate with reasonable instructions and measures aimed at enabling a return, to cooperate in drawing up, evaluating and adjusting the plan of approach, and to perform suitable work when the employer offers it. Alongside that sit the employer written monitoring rules, which may cover reporting times, availability, attendance at appointments and notification of a change of address, provided they are reasonable and were made known in advance.

Suitable work is a defined concept: work that can reasonably be required of the employee having regard to their capacities and background, which need not be the contractual work and may be at a lower level. An employee who refuses suitable work without good reason loses the right to wages for the period of refusal, and the employer must say so immediately. Conversely, an employer that offers work the company doctor has not endorsed is not offering suitable work at all, and a wage measure based on refusing it will not survive.

The same reciprocity governs the second track. If the first-year evaluation shows that a return to the employee own job or another position within the organisation is not realistic, reintegration with another employer must be started, and both parties must engage with it seriously. A UWV wage sanction is imposed at least as often for a second track that was started too late as for one that was never started at all.

After two years: the WIA application and the dormant contract

At the end of 104 weeks the wage continuation obligation ends and the employee applies to the UWV for a benefit under the Work and Income (Capacity for Work) Act. The UWV assesses the reintegration file first. If it considers the employer efforts inadequate it imposes the wage sanction described above, and the application is deferred; if the file is in order, it assesses the degree of incapacity and awards a benefit accordingly, or none where the employee is assessed as able to earn a sufficient proportion of the former wage.

The dismissal ban falls away once the two years have passed, and the employer may then apply to the UWV for permission to terminate on the ground of long-term incapacity, provided recovery within twenty-six weeks is not expected and reassignment is not possible. For years some employers simply left such contracts in place without pay, to avoid the transition payment. The Supreme Court ended that practice in 2019: an employer that keeps a contract dormant must in principle cooperate with a proposal to terminate it and pay the transition payment, because the employer can claim compensation for that payment from the UWV. Refusing to end a dormant contract is therefore no longer a cost-free option, and the employer that does so may itself be liable.

Where the incapacity turns out to be permanent and full, the position is different again, and the choice between termination and continuation should be made deliberately and on advice. Our overview of Dutch employment law sets out how these procedures fit together.

Preventing the problem is cheaper than resolving it

Both long-term absence and quiet quitting are, in most organisations, symptoms of the same underlying conditions: workload that is never adjusted, feedback that is never given, and concerns that are never raised because nobody expects them to be acted on. The legal duty points the same way. The Working Conditions Act obliges every employer to carry out a risk inventory and evaluation and to include psychosocial workload, meaning work pressure, aggression and undesirable conduct, and to record and implement the measures that follow from it. An employer that has never assessed workload has both a compliance gap and a predictable absence problem.

Practical measures are unremarkable and they work. Review team capacity often enough that chronic overload is noticed before it becomes an absence. Make mental health support genuinely accessible and say so repeatedly, because availability that nobody knows about has no effect. Give recognition specifically rather than generically. Train managers to hold the conversation that starts with a change in someone behaviour rather than the one that starts with a formal warning six months later; that is the substance of how to improve employee engagement, and it costs less than a single wage sanction.

Where an underlying condition plays a part, the duty of good employership in article 7:611 of the Civil Code and the equal treatment legislation on disability and chronic illness push in the same direction: reasonable accommodations for ADHD and autism in the workplace, or for any other condition, are usually modest adjustments to hours, environment or task allocation, and refusing them without assessing them creates its own exposure.

Absenteeism trends in the Netherlands are followed closely by the national statistics office and by the occupational health services, and the pattern they report is consistent: a small number of long absences accounts for most of the lost days. That is a management argument for early intervention, and a legal one too, because the reintegration obligations are far easier to satisfy in the first weeks than in the second year.

Questions employers ask about absence and disengagement

Can I stop paying an employee who refuses to see the company doctor

You can, but not immediately and not as a wage stop. Refusing to attend an appointment with the company doctor is normally a breach of the monitoring rules, which under article 7:629 paragraph 6 of the Civil Code leads to suspension of pay, not to loss of it. Warn in writing first, state the specific failure, give a new appointment and a deadline, and say expressly that pay will be suspended if the employee does not attend. If the employee then complies, the suspended wage is paid in full. A wage stop under paragraph 3 requires one of the statutory grounds, such as refusing suitable work or obstructing reintegration, and it must be notified immediately.

Am I allowed to contact an employee who is on sick leave

Yes, and you are expected to. Contact is part of the reintegration duty, and an employer that leaves a sick employee alone for months will be criticised for it by the UWV. What matters is the content of the contact: wellbeing, the timeline and the return to work, not outstanding tasks or pressure to come back. You may not ask about the medical condition, and anything the employee volunteers about it must not be recorded.

Is burnout a valid reason for sick leave

Yes, where the company doctor establishes that it limits the employee capacity for the agreed work. The employer neither makes nor reviews that assessment. What the employer can do is ask the company doctor whether the limitations allow adjusted duties or reduced hours, and whether the cause lies in a labour conflict rather than in illness, because a conflict calls for mediation rather than for a place in the absence system.

When should I ask the UWV for an expert opinion

Whenever there is a genuine dispute about the employee capacity for work, about whether the work offered is suitable, or about whether either party is making sufficient reintegration efforts. The expert opinion (deskundigenoordeel) is not binding, but it is the neutral assessment a court will look for, and an employee bringing a wage claim must in any event attach one under article 7:629a of the Civil Code. Ask for it before you take a wage measure or start dismissal proceedings, not afterwards.

Law & More advises employers and employees on long-term absence, wage measures, reintegration under the Wet verbetering poortwachter, UWV wage sanctions, and dismissal where performance rather than health is the real issue. If you are unsure whether an absence is genuine, or whether the letter you are about to send suspends pay or stops it, contact our employment lawyers before you send it.