Our clients regularly deal with employee sick leave, and in Dutch labor law, the principle is: sick is sick. However, after an employee reports sick, the employer is allowed to verify whether the employee is indeed entitled to continued salary payment.
This entitlement exists when the employee is unfit for work due to illness. The company doctor (Arbo physician) assesses whether the employee can (partially) perform work despite medical limitations or if they cannot, and advises the employer accordingly. For clarity: under labor law, an employee is either sick or not — there is no such thing as being “a little sick.” However, a sick employee may still be able to perform certain work tasks. Even in such cases, the employee is considered unfit for work due to illness, and the statutory provisions regarding sick employees still apply.
Partial incapacity for work
In practice, partial incapacity is still often applied when it comes to salary payments. For instance, if someone is found to be 50% unfit for work, it is commonly assumed that 50% of the regular salary and 50% of the sick pay (e.g. 70%) must be paid. This is incorrect. The employee is entitled to 70% of their last earned salary, regardless of the percentage of incapacity.
Suspension of salary
If a sick employee does not cooperate with the verification process to determine their right to continued salary — for example, by failing to attend an appointment with the company doctor — the employer is permitted to suspend salary payments until the employee complies. “Suspension” means that the withheld salary must still be paid retroactively once the employee resumes cooperation.
(Co-)responsibility for reintegration
It is also the employer’s responsibility to actively facilitate the reintegration of the sick employee — that is, the path to recovery and returning to their agreed-upon work. Only when the employee is fully capable of performing their contractual duties does the period of incapacity end.
If a sick employee does not cooperate with reintegration efforts, the employer can (and in practice should) stop paying the salary to motivate the employee to resume cooperation. In contrast to suspension, when salary is stopped, the employer is not obligated to pay the withheld salary retroactively. Salary payments resume only from the moment the employee resumes cooperation and do not apply retroactively. This makes “stopping” salary significantly different from “suspending” it.
The Dutch Employee Insurance Agency (UWV) expects employers to play an active role in applying these measures to encourage employees to meet their obligations. If an employer fails to act adequately, this may result in a salary sanction. If the employee does not cooperate, their recovery may be delayed. As a result, after two years of illness, the UWV may decide the employee is not yet eligible for sickness benefits and require the employer to continue paying salary for up to one additional year, so the employee can still participate in reintegration efforts. Only after this period — and only if there is no reasonable expectation of recovery within 26 weeks — can the employment contract be terminated due to illness.
Naturally, the rules on suspending and stopping salary must be applied in a fair and responsible manner. In practice, the situation is often handled with more leniency than the law strictly allows. However, a well-managed reintegration process often prevents UWV sanctions. More importantly, it usually leads to faster recovery. Proper and appropriate use of suspension and termination of salary is an essential part of that process.
More information
If you have questions or need legal advice based on this article, please contact one of our employment law attorneys:
