Our Amsterdam employment law lawyer advises expats and employers in case of illness and privacy in Dutch employment law and the question whether an employee has to provide medical information to his employer. Even in case of illness, an employee has a right to privacy under Dutch employment law when providing medical information. Some time ago this issue was in the news because a Dutch employer was careless with employee medical information by asking these employees for personal medical information, including ‘whether you have ever had psychological complaints’. The employer also asked for a medical report. Does this violate the privacy as regulated in Dutch labour law?
Even in the case of vague Corona complaints, should an employer always call in the company doctor? Our specialist employment law lawyer in Amsterdam deals with these questions.
Employee privacy with regard to medical data: what can a Dutch employer ask in case of illness?
An employer must respect the employee’s privacy in accordance with Article 10 of the Netherlands Constitution and the Dutch Personal Data Protection Act; and is therefore not entitled to request medical data. Within the framework of Dutch labour law, the employer may at most ask whether, in the event of illness, the illness is related to:
- an accident at work
- or a traffic accident.
The employer may also check whether an employee who fails to perform his work has a valid reason for doing so but may not enquire about the nature and cause of the illness. This also applies to non-medical staff such as the case manager, absence consultant or personnel officer.
Company doctor and medical information
On the basis of his professional confidentiality, the Company doctor may not provide the employer with medical information, except in the case of an occupational disease or accident.
Providing medical information to the employer
The Court of Amsterdam already confirmed on 4 February 2014 that an employee is not obliged to provide medical information or to appear before the management to discuss her illness, prior to a visit to the company doctor.
Employer wants to discuss illness
The employer’s lawyer indicated: “If you can go to your specialist with someone else’s help, you can come here. I will first assess what needs to be done and what the question of the occupational health and safety doctor will be on the basis of an interview with you”.
Since the employee did not comply, she was immediately fired. The UWV issued an expert opinion stating that the employee was unable to do her own work. The UWV had also issued an expert opinion stating that the reintegration carried out by the employer was not sufficient. In preliminary relief proceedings, the employee’s lawyer claimed continued payment of the salary.
Reasonable request in case of reintegration
The Subdistrict Court of Amsterdam considered that the requests made were not ‘reasonable requests’. The employee herself urged that a company doctor can be engaged, who was given permission to contact her specialist (gynaecologist).
In addition, the District Court of Amsterdam considered that the employment of a certified company doctor is mandatory for the employer by virtue of Sections 13 and 14 of the Dutch Working Conditions Act.
For this reason, the court in Amsterdam ruled that the immediate dismissal would not be upheld and the employer was ordered to continue to pay the salary.
Dutch Gatekeeper Improvement Act
According to the Dutch Gatekeeper Improvement Act, an employee has to:
- perform suitable work
- comply with reasonable instructions for reintegration given by the employer.
A problem analysis should be carried out by week 6 at the latest. As a result, the employer is obliged under the Dutch Working Conditions Act to hire a company doctor.
Many companies therefore have an absenteeism protocol, which states, for example, that an employee is obliged to provide all information that is relevant to the sick leave report. However, the protocol must be approved by the works council. Certain obligations may conflict with the Dutch law, such as unnecessarily burdensome regulations.
Control requirements in the event of illness
Control regulations are intended to determine the incapacity for work due to illness as laid down in Sections 7:660 and 7:629(6) of the Dutch Civil Code. On the basis of this, an employee is obliged to comply with ‘reasonable regulations regarding the provision of information required by the employer in order to establish the right to pay’. Control regulations apply during the entire period of illness.
When may an employer suspend wages?
The employer may suspend wages. An employer is therefore authorised to suspend the employee’s salary if the employee refuses to comply without good reason:
- reasonable instructions from the employer (or the company doctor) regarding reintegration
- drawing up, evaluating or adjusting a plan of approach
- suitable employment
In that case, the salary does not have to be repaid retroactively for the period of refusal if the employee subsequently cooperates.
Notice of default: warning
Before taking this step, the employer must according to Dutch employment law, first give the employee written notice to cooperate in the reintegration (notice of default). In this written reminder, the employer must indicate that he will discontinue the employee’s salary on a certain date if the employee remains reluctant.
Expert opinion of the UWV
Should the employer decide to request the termination of the employment contract from the subdistrict court for this reason, he must first request an expert opinion from the UWV, which must show that the employee has made insufficient efforts in the context of reintegration. Without submitting this expert opinion, the judge must reject the employer’s request for dismissal.
Company doctor and Corona/Covid 19 complaints
The Court of Rotterdam ruled that all this also applies to Corona-like complaints. An employee was unable to come to work because of coughing complaints and sore throats. According to the Subdistrict Court, this had to be regarded as a report of illness. According to the Subdistrict Court, if the employer doubted that the employee was incapacitated for work due to illness, it would have been up to the employer to call in the company doctor and have the sickness report assessed. Since the employer did not inform the company doctor and the company doctor did not assess the sickness report, it cannot be excluded that the employee did not work because he was/is ill.
Moreover, in the event that the employer had not been incapacitated for work due to illness, the employer should have informed the employee of the intention to discontinue the payment of wages prior to proceeding with the discontinuation.
All this shows that it is best for an employer to call in a company doctor in the event of (suspected) illness and to be cautious when requesting medical information from the employee himself.
Contact Dutch employment law lawyer in Amsterdam about illness, company doctor and occupational health and safety service in The Netherlands
Call our Dutch specialist employment law and dismissal lawyer in Amsterdam for questions and legal advice on employment contract, employment law and dismissal, including illness, company doctor and occupational health and safety service.