It is a discussion that we see on a regular basis: is an employee entitled to salary if he or she is too ill to work due to a drug addiction? Here you can read how the Court of Appeal of The Hague ruled recently.

Facts

The judgment of the court of appeal of 25 May 2021 concerned the following. The employment contract between employer and employee ended by operation of law on 30 June 2020. However, the employee argued that he was still entitled to salary from 21 October 2019, i.e. the date he reported sick, until the end date. According to the court, it is up to the employee to prove that he was indeed unfit for work. In order to meet this burden of proof, the employee submitted (medical) information.

Judgment of the Court of Appeal

In support of his claims, the employee submitted reports from the company doctor and the absenteeism counselor to the Court. According to the Court, these reports show that during the period in question, the employee was undergoing a treatment programme and was therefore unable to perform work. A referral from the general practitioner and a message from the treatment provider indicated that the issue concerned addiction problems.

Based on these documents, the Court ruled that the employee's alleged incapacity for work in the period from 1 February 2020 to 1 July 2020 was established. It does not matter that the employee did not share the details of the treatment with his employer. After all, the employee was under no obligation to share that information with his employer.

The fact that the treatment had been going on for more than a year at the time of reporting sick does not mean, according to the Court, that the illness was fictitious.

The employer argued that an employee's drug addiction should be at his own expense. According to the employer, an employee who consciously chooses to use drugs and then reports sick is not entitled to salary. However, the Court of Appeal has a different view: there is no situation in which the illness was caused by deliberate action on the part of the employee.

Final Remarks

The employee is indeed entitled to wages for the period in which he was ill due to drug addiction. You can read the full judgment here.

Are you an employer and struggling with similar issues? Or do you have other employment law questions? SPEE advocaten & mediation has the knowledge and experience to help you further.