Has one of your employees been off work sick for a long period? During the first two years of illness, you, as an employer, have different obligations with regard to the employee, including:
- Maintaining the employment contract
- Continuing to pay wages of the employee
- Making efforts for the re-integration of the employee.
Prohibition against termination of employment during an employee’s illness
You are not allowed to unilaterally terminate the employment contract with the sick employee during the first two years of illness. This is prohibition against termination of employment during an employee’s illness. The prohibition against termination does not apply in any of the following:
- Termination during the probationary period
- Termination with immediate effect
- Termination with written agreement by the employee, and
- Termination due to business discontinuation.
A termination in breach with the prohibition against termination is subject to annulment.
Requirement to continue to pay wages
During the first year of illness you must continue to pay at least 70% of the employee’s wages and at least the statutory minimum wages. During the second year, you still have to pay at least 70% of the wages but you do not have to pay the statutory minimum wages any longer. If you do not continue to pay wages, the employee can enforce this in court, including an increase that can amount to half of the salary due.
You are obliged to take care together with the employee that he or she will return to work as quickly as possible. If you do not make (sufficient) effort for the re-integration of the employee, the term for continued payment of wages may be extended. Therefore, engage a company doctor or occupational health and safety service and ask them to draw up a problem analysis within six weeks after the date of reporting ill.
Together with the company doctor/health and safety service you then draw up an action plan specifying the arrangements regarding re-integration made between you and the employee.
During the illness, make sure you will discuss the progress with the employee at least once every six weeks and plan a first–year evaluation after one year of sickness. If the employee is able to work, but only in a different position with changes to the working hours, or by means of training, you will have to explore the options together with the employee. If the employee cannot be re-integrated into your company, you will have find out in good time whether the employee can re-integrate into another company, which is referred to as “second track”.
Important: Make sure all re-integration efforts are laid down in writing.
Obligations of sick employee
However, in the event of long-term sickness of an employee there are not only obligations resting upon you. The employee must make an effort for re-integration too. If the employee does not fulfil his or her obligations, and, for instance, postings on social media show that he or she is not that sick any longer or impedes re-integration, you can impose sanctions.
This newsletter provides a brief insight into Dutch employment law and the potential consequences for your Embassy. But the Embassy desk of our firm also focuses on:
- Labour law
- Rent law / Real estate
- Investment / Doing business in the Netherlands
- Matrimonial issues
- Immunity issues
Head of Embassy Desk