State of play based on the rules in 2022 and expected changes in 2023
Almost every employer has to deal with sick employees and the obligation to continue paying wages. This article discusses all the rules regarding the obligations of the employer and the employee.
Most employees who call in sick will return to work within two weeks. But it may happen that an employee is out of the rotation for longer.
Both the employer and the sick employee are responsible for reintegration. This means that they must both do everything possible to get the affected employee back to work as soon as possible. In doing so, they must be supported by a certified absence company. This can be an occupational health and safety service (“arbodienst”), but may also be another specialized company. As long as a company doctor is affiliated with it.
The main steps in this reintegration process are:
- Week 6 – Within six weeks, the company doctor must make a problem analysis. This states why the employee can no longer work, what his possibilities for recovery are and when he thinks he can resume work.
- Week 8 – Within eight weeks, the employer prepares a Plan of Action together with the employee. This plan describes what both parties will do to get the employee back to work. The Plan of Action is based on the problem analysis.
- Week 42 – The employer reports the sick employee to the UWV.
- Week 44 – The employer receives confirmation from the UWV and information about the activities to be undertaken in the second year of illness.
- Week 91 – If all efforts have not resulted in a return to work, the employee must submit a WIA application to the UWV. The UWV assesses the reintegration efforts first before any WIA benefit is awarded.
UWV (Employee Insurance Agency) is an autonomous administrative authority and is commissioned by the Ministry of Social Affairs and Employment to implement employee insurances and provide labour market and data services.
The Dutch employee insurances are provided for via laws such as the WW (Unemployment Insurance Act), the WIA (Work and Income according to Labour Capacity Act, which contains the IVA (Full Invalidity Benefit Regulations), WGA (Return to Work (Partially Disabled) Regulations), the Wajong (Disablement Assistance Act for Handicapped Young Persons), the WAO (Invalidity Insurance Act), the WAZ (Self-employed Persons Disablement Benefits Act), the Wazo (Work and Care Act) and the Sickness Benefits Act.
The law requires employers and employees to hold a progress meeting every six weeks on developments in the reintegration process. If this process continues, the reintegration progress is reviewed after the first year and the steps for the coming year are determined.
Reintegration file and reintegration report
The employer must keep track of all reintegration efforts in a reintegration file. This forms the basis of the reintegration report that must be made at the end of the reintegration process and serves to assess whether employer and employee have done enough.
Payment of a sick employee’s salary
Legal obligation to continue payment of wages
A sick employee is entitled to continued payment of 70% of his wages for a period of 104 weeks. By wages is meant: weekly and monthly wages, shift and weekend allowances, overtime pay, holiday allowance and (depending on the wording) a thirteenth month. During the first 52 weeks, it must be at least the minimum wage. There is also a maximum, namely the maximum daily wage based on the Social Insurance (Funding) Act.
Note here that the minimum wage increases by 10.15% as of January 1, 2023. Employees earning less than €2,763.43 per month as of January 1, 2023 are entitled to continued payment of at least the minimum wage of €1,934.40 per month during the first 52 weeks of illness.
Only for the first two days of illness parties can agree that the employee is not entitled to wages, the so-called waiting days. Should the employee fall ill again within four weeks after the last report of recovery, two waiting days cannot be withheld again.
Supplement to the statutory continued payment obligation
Often the collective labour agreement or individual employment contract provides a supplement to the legal obligation to continue to pay salary, for example a supplement to 100% of the salary (for the first 52 weeks). The employer can impose further requirements on this supplementary part, such as no entitlement to a supplementary payment in the event of occupational disability as a result of intentional acts, gross negligence or culpable negligence.
Wage sanction/extended obligation to continue payment of wages
If the UWV imposes a wage penalty on the employer, for example because she has not sufficiently fulfilled her reintegration obligations, in principle the legal obligation to continue to pay wages (70% of the salary) applies. This is different if a different agreement has been made in the collective labour agreement or individual employment contract regarding the extended period.
The employee who intentionally caused his illness is not entitled to wages during illness. The intention of the employee must have been aimed at getting sick. Because a heavy burden of proof applies to this for the employer (after all, she is the one who takes this position), this is almost never the case.
Even when practicing a dangerous sport or hobby or when acting in such a way that (significantly) increases the chance of becoming ill (think of excessive alcohol or drug use) the sick employee retains his right to continued payment of wages. Risky behavior is not sufficient to assume intent.
If the sick employee delays or hinders his recovery, he is not entitled to continued payment of his wages. A sick employee must always take or refrain from taking those measures that are important for his recovery. However, the employee has a great deal of freedom in determining how he wants to heal. If he prefers alternative treatment to the use of regular medication, in principle he is free to do so. If the employee mistakenly does not consult a doctor, there may be an obstacle to healing.
Refusal of suitable work
An employee who refuses to perform suitable work may face a wage freeze. If the employee does not find the offered work suitable, he can request an expert opinion from the UWV. If the employee does not submit this application within a reasonable time, he is not entitled to wages for the period between the company doctor’s opinion and the submission of the application.
For example, if the employee can only perform suitable work for two hours, but he refuses to do so, the employer may stop all wages as a sanction.
The employee must cooperate with reasonable regulations or measures taken aimed at enabling the employee to perform suitable work. For example, an employee may not refuse to sign a medical authorization without good reason or allow the company doctor to contact the treating physician.
Failure to cooperate with plan of action
Refusing, without good reason, to cooperate in the timely preparation, adjustment and evaluation of the plan of approach is also a reason for a wage freeze. The plan of approach is meant to be continuously evaluated. When there is short-term absenteeism, such as a bout of the flu, drawing up an action plan is not necessary.
Suspension of wage payment obligation
If the employee fails to comply with the employer’s monitoring requirements regarding the provision of information required by the employer to establish the right to wages, the employer may suspend wages. The difference with the wage freeze is that as soon as the employee again complies with the control requirements, he is entitled to wage payment retroactively. This means that the wages withheld during the suspension must still be paid.
As soon as an employee reports sick to the employer, it is important to assess whether it is a short period of illness (up to 2 weeks) or whether the illness may last longer. In the latter case, a reintegration process will have to be initiated. During the illness, the employee is entitled to continued payment of wages for a period of two years. This period can be extended if the employer has not done enough to reintegrate the employee. It is therefore important for the employer to take action in time and involve the necessary agencies such as an occupational health and safety service (“arbodienst”) and UWV, and in the meantime to stay in contact with the employee.