Payment of wages during illness
For the first two years of illness, the employer must continue to pay the ill employee's wage. The law stipulates that an ill employee is entitled to at least 70% of their wage for the first 104 weeks; for the first 52 weeks, the minimum entitlement is the statutory minimum wage. Depending on the employment conditions, the employee may be entitled to a higher wage than the statutory requirement.
Ban on terminating a contract
Under Dutch law, employees who are ill cannot be dismissed for the first two years of illness. This means that, in principle, an employer cannot dismiss an ill employee (although there are, of course, exceptions!)
From the start of the third year of illness it is, in principle, possible to terminate the employment of an ill employee. To do this, the employer must start a dismissal procedure at UWV Werkbedrijf, or conclude a termination agreement with the employee. However, such a procedure is contingent on the UWV Employee Insurance Agency being satisfied that the employer has taken sufficient reintegration measures. If the UWV believes the employer has not taken sufficient reintegration measures, it will require the employer to continue paying the employee's wage for a further year (a wage sanction) and the prohibition on terminating the contract will continue to apply. Consequently, it is very important to take sufficient reintegration measures during the first two years of illness.
Employers have a legal obligation to obtain expert assistance in various situations, one of which is the provision of support for ill employees. This means involving a company doctor or occupational health service.
It is advisable to reach clear agreements with the company doctor about mutual expectations and responsibilities, ideally at the start of their involvement, but in any event when the reintegration process commences. In practice, the approach in the two to six weeks of absence often determines the subsequent course of events. Frequently, nothing or not enough is done during this period. This is one reason for staying in regular, direct contact with the company doctor.
Whether you are an employer or an employee, it is prudent not to simply accept the opinion and advice of the company doctor without subjecting them to critical review. This is particularly important if there are facts which cast doubt on the accuracy of the company doctor's report. In a nutshell, employer and employee must be proactive.
If an employee does not agree with the company doctor's opinion, they can ask another company doctor for a second opinion, or request a report by the UWV.
If you are unsure whether you are on the right track, with reintegration or otherwise, or if a reintegration process has unexpectedly stalled, ask the UWV for a report. This option is available to employers and employees.
If the employer believes that an employee is not cooperating sufficiently with their reintegration, the employer may impose a wage sanction. Depending on which reintegration obligation is not being met, this may entail suspending or stopping the employee's wage. However, it is important that such wage sanctions satisfy all the legal requirements, otherwise they will be not be legally valid, and may be challenged by the employee.
If the employee has burned their bridges, dismissal is an option. An employment lawyer will be able to advise you on this.
Assessment of reintegration by the UWV
As already mentioned, at the end of the second year of illness, the UWV assesses, step by step, whether the employer has undertaken adequate reintegration efforts:
- To begin with, it assesses whether a satisfactory reintegration outcome has been achieved.
- If a satisfactory outcome has not been achieved, it assesses whether adequate reintegration efforts have been made.
- If the reintegration efforts are deemed unsatisfactory, it assesses whether there are solid reasons for this.
- If there is no solid reason for this, it assesses the options to remedy the shortcomings.
From the second year of illness, as well as ‘Track 1’ ( = reintegration within the employer's business), in principle the reintegration should also focus on ‘Track 2’ ( = reintegration at a business other than the employer's). The UWV attaches strict conditions to the ‘second track process’, which must commence as soon as any prospect of a structural resumption of work within the employer's own organization has been ruled out. The UWV takes the view that, in principle, the second track process must be initiated within 6 weeks of the first-year evaluation (= in the 52nd week of absence). This requirement is only waived if there a concrete prospect of a structural resumption of work within the employer's own business within 3 months, or of adapted work that is the closest possible match for the employee’s functional capacities, or if the ill employee has no options left to them.
If the employee is only able to resume work after the first-year evaluation, the UWV assumes that the Action Plan will be revised within 2 weeks and that reintegration activities will commence within 6 weeks.
According to the UWV, the second track process should be organized in such a way that an employee profile is produced, describing the training and courses the employee has attended, their professional experience and skills, ambitions, wishes and preferences. In addition, a carefully compiled search profile must be drawn up, based on employment opportunities, recruitment opportunities and options for resuming work on the current job market, in order to ascertain which roles and activities are suitable for the ill employee. All the reporting points must also be clear.
The employer can decide either to handle the second track process itself, or get the support of an expert (such as a reintegration agency). However, the UWV expects employees who decide to manage their own second track process to offer and pay for the involvement of an expert at the employee's request.
Different rights and obligations may apply to cross-border workers who are ill. Read more about this at our Euregion desk: https://spee-advocaten.nl/de/know-how/euregiodesk/
Get advice from an employment lawyer!
You can of course ask us for advice at any time. We will review and discuss the reintegration process with you, so that we can identify potential for improvements and flag up legal risks. If necessary, reintegration can be undertaken promptly to avoid any issues with the UWV.
For employers, this also increases the likelihood of a successful outcome in any current or future dismissal proceedings. For employees, of course, this makes it less likely that the employer will be able to dismiss them.
If you have any questions, or are in need of advice, get in touch with our specialist employment lawyer for a no-obligation chat. We will be happy to help!