An employee is entitled to protection of their medical data whilst on sick leave. In principle, an employer may not have access to medical information that is not necessary for the return-to-work process. But does this also mean that an employee may refuse to share a report on their work capacity with the employer? On 29 May 2026, the Supreme Court upheld a ruling by the Amsterdam Court of Appeal in which such a refusal ultimately led to the termination of the employment contract on the grounds of serious culpable conduct.

A protracted and difficult return-to-work process

The employee had been employed as a surveyor since 1997. After falling down a flight of stairs whilst at work in December 2016, he became partially unfit for work. In the years that followed, a protracted and difficult return-t;/o-work process ensued.

The employer wished to obtain an up-to-date assessment of the employee’s capacity for work in order to determine which tasks he was still able to perform. However, it proved impossible to obtain an up-to-date Functional Capabilities List (FML) via the company doctor. The company doctor stated, amongst other things, that he did not have the employee’s consent for this and advised that an external expert be engaged for a further assessment.

The employer and the employee subsequently agreed that Ergatis, as an external expert, would carry out an assessment of the employee’s current limitations and work capacity. This process also proved difficult. Ultimately, the employee refused to consent to the Ergatis report being provided to his employer.

Can an employee invoke their right to medical privacy?

There is no question that an employer does not automatically have the right to access an employee’s medical data. During sick leave, the employer may only have access to the information necessary for the employee’s return to work. Medical diagnoses and other medical details belong, in principle, to the company doctor and not to the employer.

However, this does not mean that an employee may block every form of assessment of their work capacity or the disclosure of the results thereof.

Under Section 7:660a of the Dutch Civil Code, an employee is obliged to cooperate with their return to work and to comply with reasonable instructions and measures issued by the employer. This is balanced by the employer’s obligation under Section 7:658a of the Dutch Civil Code to make genuine efforts towards the employee’s return to work.

In order to fulfil that obligation, an employer must have sufficient information at its disposal to be able to assess which tasks an employee is still capable of performing.

Judgment of the Court of Appeal

The Amsterdam Court of Appeal ruled that, in these specific circumstances, the employer was entitled to engage Ergatis to assess the employee’s capacity for work.

A key factor in this was that the employer had first attempted to obtain the necessary information via the company doctor, but this had not resulted in an up-to-date FML. Furthermore, the parties had subsequently agreed to engage an external expert.

According to the Court of Appeal, the employer had a demonstrable and legitimate interest in up-to-date information regarding the employee’s capacity for work. The assessment therefore constituted a reasonable requirement within the framework of the reintegration process.

By ultimately refusing to cooperate in providing the report to the employer, the employee frustrated the reintegration process. The Court of Appeal characterised his conduct, partly in view of the background and all the circumstances of the case, as seriously culpable. The employment contract was terminated.

Supreme Court upholds the ruling

The employee appealed to the Supreme Court, but without success. On 29 May 2026, the Supreme Court dismissed his grounds of appeal pursuant to Article 81(1) of the Rules of Procedure.

This is an important legal nuance. The Supreme Court did not, therefore, formulate a new general legal rule obliging employees to share medical expert reports with their employer. However, the Court of Appeal’s judgment does stand.

Advocate General Drijber also concluded that the Court of Appeal’s judgment was legally sound. In his view, key factors included the fact that the employer had first attempted to have the assessment carried out by the company doctor, that this had not resulted in a current FML, that the parties had subsequently agreed to engage an external expert, and that the employer had a legitimate interest in information regarding the employee’s current capacity for work.

Link to the judgment and the Advocate General’s opinion: Hoge Raad 29 mei 2026, ECLI:NL:HR:2026:816; conclusie A-G Drijber 20 maart 2026, ECLI:NL:PHR:2026:279.

Medical privacy is not an absolute right to block reintegration

The judgment demonstrates that, in the context of reintegration, two interests must be carefully balanced against one another.

On the one hand, the employee has a right to the protection of their medical privacy. An employer does not have carte blanche to request diagnoses, treatment details or a complete medical record.

On the other hand, the employee has a legal obligation to cooperate reasonably with their return to work. Where information about their functional capabilities is necessary to facilitate that return to work, an employee cannot simply refuse to cooperate or provide information on the grounds of privacy.

This applies all the more so where the employer has first followed the standard procedure via the company doctor, that procedure has yielded insufficient results, and an external expert is subsequently engaged in consultation with the employee.

What does this mean in practice?

For employers, this ruling does not mean that they are permitted to request medical data directly from employees. The company doctor continues to play a central role in matters of sickness and reintegration, and the employer must always be able to explain why certain information is necessary.

Where additional information regarding functional capabilities is required, it is advisable to clearly set out in advance which expert will be engaged, what questions will be asked, what information will be provided to the employer, and why that information is necessary for the return-to-work process.

Conversely, for employees, medical privacy does not confer an unlimited right to block a return-to-work assessment. A systematic refusal to cooperate with a reasonable and necessary assessment may have consequences under employment law. In exceptional circumstances, as this case demonstrates, this may even lead to termination on the grounds of serious culpable conduct.

The line remains dependent on the circumstances of the specific case. That is precisely why due care is essential on both sides.

The employment lawyers at SPEE advocaten & mediation are happy to assist you.

Monique J.E. Spee, LL.B., lawyer and MfN-registered mediator