12 Feb 2020 As an employer you receive a wage sanction from the UWV. What now?
Employers and employees are obliged to do everything possible to make sure that reintegration is successful. After two years of sickness absence, UWV will issue a wage sanction if the result of the reintegration process is insufficient.
This means that if the Poortwachterstoets (incapacity benefits test) demonstrates that insufficient reintegration results have been achieved after two years of sickness absence, the employee’s WIA (Dutch Invalidity Insurance) application will be suspended and the employer will have to continue paying the employee’s salary for up to a year.
Wage sanctions are imposed when occupational health and safety services (arbodiensten) or employees have not taken the necessary actions or have taken these much too late. Common situations include inadequate measures from the occupational health and safety service
(the company doctor concludes that an employee has no feasible employment options. Following assessment of the reintegration report, however, the UWV is of the opinion that there are still feasible options. The missed reintegration opportunities will result in a wage sanction on the employer. The same can apply in cases in which those involved simply await recovery and do not look at alternative options; they just monitor and wait instead of taking active intervention. Not applying professional protocols and working procedures will also result in a wage sanction. This could include protocols for handling employment conflicts and lower back complaints [STECR guidelines]). The occupational health and safety service may be partly responsible for these shortcomings.
Inadequate employer measures are another cause. For instance, if the employer has not made sufficient efforts for reintegration or has made insufficient use of existing employment options. What also frequently occurs is not using the option of reintegration to another employer, or using this too late. This is known as the second track. Employers also appear to have difficulty putting appropriate pressure on uncooperative employees in working towards their reintegration. This means that the employer does not use its own sanction options. The UWV will impose a wage sanction if the lack of an employer sanction contributes to an employee not reintegrating successfully.
Often heard employer arguments are:
- We were waiting for the medical treatment to finish;
- We were only following the company doctor’s advice;
- Our employee is too old and there’s no chance of successful second track reintegration.
These arguments are, unfortunately, almost always insufficiently valid and the UWV will not generally consider these as being sound grounds for a failure to act.
Some company doctor recommendations stated in the latest assessment can also contribute to a wage sanction. For instance, ‘Employee cannot work now but will be able to in the future’! or ‘Employee has no feasible options’.
Such pronouncements obstruct the reintegration efforts but oblige the employer to ask follow-up questions, such as when does the future start for this employee and how severe and where are the barriers, and can something be done about this? If the UWV’s vision deviates from the company doctor’s vision, the employer will receive an expensive wage sanction. So make sure you ask your company doctor for an explanation.
In practice, it regularly occurs that a company doctor considers the employee’s options to be extremely limited, while an insurance doctor will probably judge that although the employee has impairments s/he can restart adapted work with these impairments. These kinds of unfortunate situations occur relatively often with employees who have psychological complaints. The UWV will then often identify more feasible options than the company doctor.
Sometimes wage sanctions are the result of simple shortcomings. For example, an employee considers himself to be severely impaired. He seeks suitable work but within a limited search area near his home. However, there are no limitations with respect to travel or journey times. It’s not difficult to guess what UWV will think about this. The employer will receive a wage sanction in such cases.
After receiving a wage sanction, always assess the opportunity to lodge an appeal against the UWV decision. But do not forget to review the possibilities of correcting the shortcomings identified by the UWV as quickly as possible. If you succeed in reintegrating someone or using a second track route at this point you can ask the UWV to lift the sanction. This is often the fastest way to get the wage sanction lifted. Additional financial investments will often be needed for this as you will need to involve a reintegration company or career adviser.
If a reintegration company was already involved and a wage sanction was imposed, make sure you discuss the follow-up process and the costs of this with the reintegration company. As soon as an employer is of the opinion that the shortcomings have been corrected, it should report this to UWV. The employer should state which measures have been undertaken and why it considers that the shortcomings have been remedied. Within three weeks of receipt of the report, the UWV will then assess whether the employer has made sufficient efforts towards reintegration.
Please note: the UWV assumes that employers carry the full risk for negative consequences of any incorrect advice issued by experts they involve, including company doctors, career advisers, reintegration companies, and similar. Wise employees do not simply follow the company doctor’s or reintegration company’s advice. Discuss their advice with them and ask questions, and if you are uncertain about the opinion of an expert, consult the UWV.
This topic also emphasizes how important it is that employers operate with due care, certainly in the case of an ill employee, and that you seek timely advice with respect to your interests as employer (and, of course, the employee’s interests). SPEE advocaten & mediation will be delighted to support you in this.