Can I go on vacation while sick?

Asking for permission

In principle, the same rules apply to sick employees as to other employees. This means that a sick employee is allowed to go on vacation, but must request permission from the employer. Dutch law stipulates that the employer determines vacation dates in accordance with the wishes of the employee, unless there are compelling reasons to refuse. This means that the employer can only deny the vacation if it leads to a serious disruption of business operations, for example, when everyone wants to go on vacation at the same time, resulting in understaffing. This can be a valid reason to refuse a vacation.

According to Article 7:638, paragraph 2 of the Dutch Civil Code, the employer must respond to the vacation request within two weeks. If they fail to do so, the vacation is established according to the wishes of the employee. Therefore, our advice is to always submit a vacation request in writing, so that there can be no dispute later about this response period.

Advice from the Company Doctor

In practice, we see that vacations for sick employees are sometimes refused by employers because they believe it is not beneficial for the employee’s reintegration. However, it is not the employer’s role to assess this; it is the responsibility of the company doctor. The company doctor can determine whether the vacation contributes to recovery. Moreover, this argument will only hold in exceptional cases. A vacation, where leave days are deducted from the balance, is precisely intended as an exemption from the obligations arising from the employment contract. For the sick employee, this means an exemption from reintegration obligations. In other words, a vacation can still be taken, even if it delays the employee’s reintegration, because the vacation is meant as a period for rest and recovery.

Deducting vacation days while sick

The above applies if the employee consents to deduct vacation days from their balance. If the employee wants to go on vacation but has no days left (or does not want them to be deducted), the situation may be different. The key question then is whether the employee has reintegration obligations that will be put on hold during the leave. In that case, the employer has more room to reject the employee’s request. If there are no reintegration obligations, the employee can, in principle, go on vacation without days being deducted, unless this jeopardizes recovery. In this case, it may be useful to seek the advice of the company doctor.

For more information about deducting vacation days during sickness, we have previously written this blog: Vacation days during illness: deducting from balance or not? – GMW lawyers

More information?

If you have questions following this blog or have a dispute with your employer or employee regarding vacation during sickness, please do not hesitate to contact us.