06 Oct 2016 Medical check-up by company doctor: cross-border aspects.
We regularly receive questions from employees and employers alike regarding 'occupational disability,' also known as 'incapacity for work'. Reintegrating employees who have been ill or incapacitated back into the company appears to be a real challenge for many employers. If the employee also happens to be a cross-border worker who lives in the Netherlands and works abroad, then the reintegration process can become a great deal more complicated. Please continue reading for more information on this subject.
If an employee calls in sick, then the employer has a vested interest in determine whether the employee is actually unfit for work. In order to assess this, the employer should call in the assistance of an occupational health and safety service (arbodienst) or company doctor. In other words: the employer cannot make an independent decision as to whether the employee is unfit to work. This follows a case presided over by the subdistrict court judge in Amsterdam: (Voorzieningenrechter Kantonrechter Amsterdam 4 februari 2014, ECLI:NL:RBAMS:2014:564). This case involved an employer who dismissed his ill employee summarily, as the employee refused to attend an appointment with the director. The subdistrict court judge in Amsterdam ruled that the employer had no right to demand that his employee come to the office in order to discuss whether a company doctor needed to be called in, stating that this to be contrary to good employment practices as well as to the obligations concerning reintegration which are enshrined in the law. The occupational health and safety service, or at least a certified company doctor, must assess whether the employee is unfit to work. The same occupational health and safety service or company doctor must also provide advice about the reintegration of the employee. This is not the employer's task. As such, the summary dismissal due to the fact that the employee refused to see the director could not be maintained.
If the employer adopts regulations regarding checks and absences, then care should be taken to ensure that these regulations are reasonable. The regulations regarding inspection and absence are not allowed to place an unnecessary burden on the employee. Furthermore, the regulations regarding checks and absence may not entail any extensive intrusion into the employee's personal life.
Ill employees are often summoned to attend an appointment with the occupational health and safety service or the company doctor. Given our location in a border region with many cross-border workers, this situation is sometimes slightly more complicated than most people think. The issue that many people are not aware of is that an ill employee who works in the Netherlands but who lives abroad must be examined by a company doctorin his/her country of residence (HvJ EG 1992, RSV 1993/227 (Paletta I); HvJ EG 27 maart 1992, RSV 1988/169 (Rindone). Should an employer force an ill employee to attend an appointment with the company doctor in the Netherlands, then this is in fact contrary to the required respect for the employee's health. In other words: an employee who works in the Netherlands but who lives in Belgium or Germany must be examined in his/her country of residence (either Belgium or Germany) by a company doctor and therefore does not need to go to the Netherlands to attend an appointment with the company doctor in the Netherlands.
In relation to this, we would like to refer you to the ruling of the court of appeal in 's-Hertogenbosch (Hof ’s-Hertogenbosch 18 februari 2014, ECLI:NL:GHSHE:2014:451) (in Dutch only), in which the court of appeal ruled that, in light of EU legislation, the employer was not authorized to demand that the employee travel to the Netherlands in order to be inspected by a company doctor. The court of appeal in 's-Hertogenbosch also ruled that the employee, who lived abroad, does not require expert evidence in order to institute an action to recover back wages on the basis of Book 7 Article 629a of the Dutch Civil Code. The court of appeal in 's-Hertogenbosch underpins this ruling by referring to the purpose of EU legislation, which is to promote the free movement of employees. Within this framework, any situation in which an employee is faced with difficulties regarding the provision of evidence must be prevented. Consequently, all the employee has to do is request a statement of incapacity for work from a doctor in the country in which he/she resides and submit this statement to the employer.
If you are an employer who employs one or several employees who live abroad, then it is important that you prepare for such situations by ensuring that specific regulations are in place, which, preferably, have been decided beforehand! It goes without saying that it is better to make such agreements at the beginning of the employment contact rather than when the employee calls in sick. How do you do this? You can do this by including these agreements in your absence regulations, for example. In the absence regulations, you can clearly stipulate the requirements regarding statements from doctors outside the Netherlands. These requirements could concern the type of doctor and the minimum information that the expert evidence must contain. However, make sure that none of the regulations places an unreasonable burden on the employee.
If the employer does not carry out this process appropriately, then he/she cannot later object that a different type of statement, issued in the employee's country of residence, is unfamiliar to the employer or unusual in the country in which the employee works. As an employer, therefore, it is sensible to have a good look through your absence regulations.
If you have any questions, then please feel free to contact one of our employment lawyers.