Our Dutch lawyer in Amsterdam, Mr. P.Chr. Snijders, gives legal advice on disability, illness and reintegration and employment law in The Netherlands: if an employee is unable to perform the stipulated work due to illness or disability.
Occupational health physician or company doctor and second opinion
The opinion of the Dutch occupational health physician or company doctor is important. This is covered by medical confidentiality. He or she assesses the degree of disability. The advice of the company doctor can be tested by the UWV as a second opinion. Employees pay €100 for the opinion and employers €400.
Occupational disability and the ‘Wet Verbetering Poortwachter’: plan of approach and problem analysis
The Dutch ‘Wet Verbetering Poortwachter‘ imposes the obligation on the employer and employee to make an effort, together with the occupational health and safety service or the company doctor, to get the employee back to work as soon as possible by means of reintegration.
Problem analysis in Dutch employment law
After six weeks of incapacity for work, the occupational health and safety service or the company doctor must make a problem analysis. Then the employer, in consultation with the employee will draft an Action Plan to get back to work. The Plan of Action is part of the re-integration file that the employer in the long term absenteeism threatening to keep.
Reintegration in disability: first track or second track?
In the first instance, when disabled, reintegration into the own job, or reintegration into another job with the own employer and finally to a job with another employer is sought. That is the first track.
Suitable work during the disability
If it is not possible to reintegrate the employee back into his old job, then the employer must offer him suitable work during the disability within or outside the company. This is called the second track.
Suspend or stop the payment of wages
Refuses the employee to cooperate in reintegration, the Dutch employer is authorized to suspend or stop the payment of wages.
Wage payment in case of illness and disability, suspension and cessation of wages
The main rule on payment in the event of sickness and occupational disability is laid down in Section 7:627 of the Dutch BW: No work, no pay. However, an exception is made in the event of sickness, because according to Article 7:629(1) of the Dutch BW a sick employee is in principle entitled to continued payment of wages for a maximum of 2 years (104 weeks).
Reasonable requirements concerning the provision of information
According to Art. 7:629 subsection 6 Dutch BW, an employer may always suspend (postpone) payment of wages during the time that an employee does not comply with ‘the reasonable verification requirements concerning the provision of information’. After all, the employer must be able to determine whether the employee is unfit for work.
Reasonable control regulations in the context of reintegration
If the employee again complies with the control regulations, the wages must still be paid. However, the obligation to continue to pay wages may be completely discontinued (wage freeze) if:
- the employee refuses to comply with reintegration obligations.
- the employee impedes the recovery;
- the incapacity for work is caused by the employee;
- the employee refuses to cooperate with the plan of approach;
- the employee refuses to perform suitable work;
- employee refuses to apply for WIA benefit without a good reason.
Resumption of work after illness: valid grounds?
The purpose of the wage sanction is to force the employee to resume work for 100% as soon as possible. It is only different if there is a good reason to refuse to cooperate in the reintegration (Article 7:629 paragraph 3 opening words and sub d BW).
No work no pay in Holland
In the event of a wage freeze, the entitlement to wages lapses until the employee again fulfills his obligations. Here again the principle of “no work no pay” applies (Section 7:627 of the BW), unless a full pay freeze is unacceptable according to the standards of reasonableness and fairness. In principle, therefore, the employer does not have to pay this wage retroactively if the employee again fulfills his obligations.
Continued payment of wages during occupational disability
During the first two years of occupational disability, there is a statutory prohibition on termination and wages must continue to be paid,
- at least 70% of the gross salary
- and in the first year of illness not less than the statutory minimum wage.
It is often agreed that in case of illness, the salary is 100% for the first year. If the employer refuses to cooperate sufficiently in the reintegration process, the Dutch UWV may impose a wage sanction, which means that the employer must continue to pay wages for a longer period.
Illness and disability benefit in The Netherlands
If the efforts do not lead to a return to work, the employee will receive a WIA application form from the UWV in the 87th week. In the event of incapacity for work of more than 35%, an incapacity benefit (WIA) will be paid.
In case of partial occupational disability, the WGA applies; and in the event of full permanent occupational disability, the IVA.
If the partial incapacity for work is less than 35%, the employee becomes unemployed.
Contact an Amsterdam for legal advice on sickness / disability / reintegration employment law in Amsterdam
For more information and legal advice on illness, reintegration and disability please contact our Dutch lawyer in Amsterdam specializing in employment law, Mr. P.Chr. Snijders.