When is an employee sick? There are several aspects to look at to determine whether an employee is sick or not. And if an employee is ill, does the employee have obligations? And does an employer have obligations? In this blog you can read about illness among employees and the obligations that arise from this from both the employee and the employer.

Sick according to the law

When a sick employee is referred to, the question is not only whether an employee is medically ill, but also whether the employee is able to perform his own work. An employee can also be medically ill, but be able to perform his own work.

According to the law, Article 7:629 paragraph 1 of the Dutch Civil Code, an employee must meet three conditions in order to be entitled to continued payment of his wages due to illness. The three conditions are as follows:

  • Due to unfitness as a result of illness, pregnancy or childbirth, the employee
  • Prevented to
  • To do his own work

It is therefore a question of whether the employee is sick and incapacitated for work. In addition, for that reason, the employee must no longer be able to perform his own work. If this relationship exists, the employee can claim continued payment of his wages.

Cause of the disease

If an employee is sick, it does not matter what the cause of this illness is. For example, if an employee experiences mental problems due to circumstances in the private sphere, this does not affect the right to continued payment of wages. An employee who is ill due to private circumstances has just as much right to wages as an employee who is physically ill.

Sick is an employee who is unable to do the work that he is supposed to be able to do due to either a physical or mental infirmity. The surrounding circumstances do not affect the employer’s obligations.

Wage in case of illness

In principle, a sick employee is entitled to a minimum of 70 percent of his last earned salary for two years. This is laid down in Article 7:629 of the Dutch Civil Code. Wage is the amount that an employee is paid in the event of illness.

The wage that is based on the commitment, such as hours worked overtime, also count towards the amount of the sickness benefit. If the employee has structurally worked overtime prior to his absenteeism, the employer must also continue to pay the average wage for overtime during the employee’s absenteeism.

In the event of the employee’s illness, both the employer and the employee must carefully examine the employment contract and the collective labor agreement, if a collective labor agreement applies. In practice, it often happens that an employer pays too much or too little wages to the employee. The collective labor agreement may stipulate that the employee is entitled to a higher percentage than 70% in the event of illness .

Sickness rules for employers and employees

During the first two years of illness, the employer and the employee are jointly responsible for the employee’s reintegration. If the employee is ill for a long time and is unable to perform his own work, the employee will look at other options together with the employer and the company doctor. If it is already clear in advance that the employee will no longer be able to work in the future, the employee can apply for WIA benefit early.

The first six weeks

If the employee is ill for six weeks, the employee has had at least one consultation with the company doctor. The company doctor examines which activities the employee can or cannot perform. After this examination, the company doctor makes a problem analysis. In this problem analysis, the doctor indicates what is needed for the reintegration of the employee.

Two weeks after the problem analysis

Two weeks after the problem analysis, the employee draws up a plan of action together with the employer. The action plan describes how the employee can return to work as quickly and responsibly as possible. The employer appoints a case manager to ensure that everyone complies with the agreements. Both the employee and the employer can contact the case manager if someone does not keep to the agreements.

Progress conversations

During the reintegration, the employee discusses the progress of the reintegration with the employer at least once every six weeks. These conversations are recorded in the evaluation. If the employee has been ill for a year, there will be a first-year evaluation. When the reintegration is completed, there will be a final evaluation. This examines what the employee can do if the employee is still unable to work after two years. The reintegration report contains all documents that have been drawn up in the past two years and this report is required to apply for a WIA benefit.

Sanctions for obstacles to reintegration by the employee

Article 7:269 of the Dutch Civil Code lists a number of sanctions that the employer can apply with regard to wages. The employer can choose to suspend payment of wages if the employee does not comply with the rules drawn up in the Plan of Approach. This includes not showing up to the company doctor, and so on.

It is possible to stop the employee’s wages:

  • If the disease was caused by his or her intention;
  • If the illness is the result of a defect about which he or she provided false information during the appointment and as a result could never have performed his or her job in accordance with the taxability requirements;
  • For the time during which healing is hindered or delayed by his or her actions;
  • For the time during which the employee, although he or she is able to do so, does not perform suitable work without sound grounds or refuses to cooperate with reasonable regulations aimed at performing suitable work.

The employer must notify the employee in advance of both suspending and ceasing wages. The employer cannot announce the termination of the salary afterwards. The employer is expected to encourage the employee to still comply with the reintegration obligations.

Finally

Do you believe that your employer is not complying with its reintegration obligations? Do you think you are being wrongly accused of not meeting your reintegration obligations or are you being paid too little wages during your illness? Then it is wise to hire a lawyer. You can contact our office without obligation on 020 696 3000 or send an email to info@hupkesadvocaten.nl.

Published by Leonie Keet