Employers must follow certain obligations and regulations when an employee calls in sick. This blog will provide a chronological overview of the main steps you can take when dealing with sick leave and dismissal. It is recommended you follow these guidelines carefully to avoid any repercussions.
Notification of Sick Leave
When an employee calls in sick, the employer must correctly process the call. Clear agreements should be in place regarding how and when the employee should call in sick, and these guidelines should be followed by the employee. The information on sick leave may not be shared with unauthorized persons.
Sick Leave and paying wages
Under Dutch law, employees are entitled to sick pay for the first two years of their sick leave. After two years, the employee may be eligible for a benefit from the Dutch Employee Insurance Agency (Uitvoeringinsitituut Werknemersverzekeringen – UWV). The amount of sick pay and the duration of the benefit will depend on the employee’s individual circumstances and the company’s sick pay policy.
Steps to Take When an Employee Calls in Sick:
- Stay in communication with the employee. Maintaining contact with the employee during their sick leave is essential to discuss their progress and any necessary next steps.
- Keep track of the employee’s sick leave. Dutch law requires employers to track an employee’s sick leave, including the dates and duration.
- If the employee’s sick leave is expected to be long-term, the employer must consult with a working condition service (Arbodienst). The working condition service can provide advice on the employee’s ability to work and any necessary accommodations to improve the employee’s ability to work. Dutch employers are legally required to be registered with a working condition service.
- Consider offering support. Depending on the circumstances, it may be appropriate for the employer to support the employee during their sick leave, such as through modified work or rehabilitation measures. This can be discussed with the working condition service (Arbodienst).
Respect the Employee’s Privacy while on sick leave
It is important to remember that the employee has the right to privacy regarding their sick leave. As an employer, you are not allowed to ask for information on the cause of the sick leave unless it is necessary to assess whether appropriate reintegration measures can be taken.
As an employer, you cannot disclose information on an employee’s sick leave to others unless the employee has agreed to this. This also applies to mentioning the sick leave in, for example, an agenda accessible to third parties (such as colleagues). You are not allowed to simply inform colleagues that an employee is sick. It is advisable to only mention that the employee is absent. Please do note that given consent is not sufficient on its own. Suppose the employee has experienced any pressure regarding giving consent. In that case, the approval is invalid and does not serve as grounds for privacy breaches.
Sick leave: Company doctor and Working Condition Service (Arbodienst)
Once the employer is aware of the sick leave, it is advisable to contact the working condition service. The working condition service can provide support in guiding the sick employee and can help with implementing appropriate reintegration measures. The employer can also contact the company doctor, who can advise on the medical guidance of the employee.
The goal of the company doctor is to get the employee back to work as soon as possible. To achieve this, the company doctor may advise how to adjust the workplace or how the employee can resume work. This advice may include adjustments to the workplace or reducing the hours the employee works. The company doctor is not allowed to share any diagnoses or medical information of the employee with the employer. As an employer, you are required to follow the advice of the company doctor unless there are reasonable grounds not to do so. This may be the case if the advice is not feasible or if it is in violation of the law.
As an employer, you have a legal obligation to follow the advice of the company doctor unless there are reasonable grounds not to do so. If you do not follow the advice, you may be liable for any adverse consequences to the employee’s health.
Dealing with Doubtful Sick Leave
An employer may doubt the sick leave of an employee. This may be the case if the employee is sick more frequently than average or if the employee did not get a holiday as planned and calls in sick. As an employer, handling sick leave carefully is essential to avoid unnecessary tension between you and the employee. The employer might be liable if sick leave is not handled carefully, which leads to tension on the work floor.
An employer is not allowed to determine whether the employee is sick. This is entirely up to the company doctor. If the employer doubts the sick leave, he should set up an appointment between the employee and the company doctor on short notice. If the company doctor confirms that the employee is sick, but the employer still doubts the sick leave, the employer can ask the UWV for an expert report (deskundigenoordeel). It is too much to go into detail for this blog about the possibilities and consequences of a deskundigenoordeel. If you would like more information, please feel free to contact the specialists at LexQuire.
Prohibition of Dismissal During Sick leave
It is important to note that dismissing an employee due to illness in the Netherlands during the first two years of illness is generally prohibited. This means an employer cannot use the employee’s sick leave as a reason for dismissal. If the employer wishes to dismiss the employee, they must follow the proper dismissal procedure outlined in dutch law. If an employee is dismissed while on sick leave, they may be entitled to compensation. The employer might be liable for any damages regarding the unallowed dismissal.
Dismissal via UWV while on sick leave
Suppose the employee’s sick leave is expected to last longer than two years. In that case, you may be able to initiate a dismissal procedure with the UWV. This process involves obtaining permission from the UWV to dismiss the employee due to their prolonged absence.
As an employer in the Netherlands, it is essential to be familiar with the laws and regulations surrounding sick leave and dismissal. By following the steps outlined above and consulting with the relevant parties, such as the working condition service and the UWV, you can ensure that you comply with Dutch law and can effectively handle sick leave. Should you have any questions, do not hesitate to contact the specialists of LexQuire for specific advice on your situation.