For an employer, it is important to determine whether an employee is genuinely ill, as a sick employee is entitled to continued salary payments. But how far can an employer go in checking up on a sick employee? Is it permitted for an employer to call the employee at home to ask how they are doing and how long the illness is expected to last? Can the employer visit the employee at home for verification?
This article addresses these and other questions, along with the scope of the employer’s authority when it comes to monitoring sick employees.
Involvement of the Occupational Health Service (Arbodienst) and the basic contract
Under the Dutch Working Conditions Act (Arbeidsomstandighedenwet), employers are required to have a policy in place concerning employee absenteeism. Furthermore, employers must enlist the support of either an internal or external occupational health service when managing sick employees. Since July 2017, every employer in the Netherlands is also required to have at least a basic contract with an occupational health service. This written agreement outlines the roles and responsibilities between occupational health providers and employers regarding occupational health policy, including tasks for which expert assistance is legally required.
‘Is the employer allowed to call or visit a sick-listed employee at home for verification, or to summon the employee for a meeting?’
The Working Conditions Act does not explicitly prohibit employers from verifying an employee’s sickness themselves, although they must involve an occupational health service in the employee’s care process. However, case law makes it clear that employers are wise to leave such verification to the designated occupational health professionals. This means employers must exercise great caution when contacting a sick employee directly.
Examples from case law
In one case, an employer conducted the verification personally and suspended the employee’s pay, believing the employee was not truly ill. In the resulting legal proceedings, the court ruled in favor of the employee, ordering the employer to pay the withheld wages. The employer had improperly exercised its right to verify the illness, as it had not involved the occupational health service but instead appointed an unqualified employee to act as an expert.
In another case, an employer hired a private investigation firm immediately after an employee reported sick, due to doubts about the claim. The employee was observed for seven days, and a GPS tracker was placed under her private vehicle. The subdistrict court ruled that, given the special and personal nature of the employment relationship – one based on mutual trust – monitoring the employee’s behavior should generally be done by the employer themselves.
Moreover, an investigation triggered by suspicion must start with a conversation with the employee. Monitoring an employee without their knowledge through a private firm is only acceptable under very exceptional circumstances, which require concrete and serious suspicions of major misconduct. In this case, such serious suspicion was lacking. The employer could – and should – have spoken with the employee first and then involved the occupational health service to assess the situation.
Employer’s right to set monitoring rules
When an employee is sick, the employer is allowed to establish reasonable monitoring rules that the employee must follow during their sick leave. If the employee fails to comply, the employer is entitled to suspend salary payments until the rules are followed. These rules must be reasonable, written, and necessary to establish the employee’s right to wages. Most companies have such rules in place, for example, requiring employees to report their illness before 9:00 AM and to attend occupational health consultations when summoned.
Example from case law
In another case, an employer doubted the employee’s sick leave and hospital admission after the employee failed to attend a scheduled training session. Only after the occupational health service determined the employee was not at home did the employee report that he had been hospitalized. Additionally, he had not informed the employer of his hospital address. These actions violated the company’s employee handbook and were treated as refusal to work, leading to immediate dismissal. However, the subdistrict court ruled that the monitoring rules did not require the employee to provide proof of hospitalization. Therefore, the fact that the employee was not at home and failed to share his location was not a valid reason for summary dismissal. The employment contract remained in effect.
Information to which employers are entitled
Employers are only entitled to information necessary to determine the employee’s right to continued salary payment. In short, they are only allowed to know the limitations that prevent the employee from performing their contractual duties and the expected date of recovery. The occupational health service will only share this non-medical information with the employer, not any medical details.
Legal advice
If you have questions or need legal advice based on this article, please contact our team Employment Law
