Vacation days during illness: deducting from balance or not?

A recent judgment of the Supreme Court dated November 17, 2023 with case number ECLI:NL:HR:2023:1603 has clarified this question. The answer is quite complicated and depends on the situation.

Statutory or non-statutory vacation days

Firstly, we need to distinguish between statutory vacation days and non-statutory vacation days. The statutory vacation days amount to four times the weekly working hours. For a full-time employment of 40 hours per week, this amounts to 160 hours, or 20 days per year. If the employer offers more vacation days, all days above this minimum are non-statutory vacation days.

With regard to non-statutory vacation days, deviations from the law can be made by written agreement according to article 7:638 paragraph 8 of the Dutch Civil Code. For example, some collective labor agreements may include a provision stating that a sick employee accrues limited vacation days. This cannot be done for statutory vacation days. For the discussion below, we will focus on statutory vacation days.

With or without reintegration obligations?

Firstly, the Supreme Court distinguishes between sick employees with and without reintegration obligations. A sick employee who, according to the company doctor, has no possibilities for reintegration does not have to take vacation days to go on holiday. The thought is probably that if an employee is so ill that there are no reintegration obligations, he or she cannot enjoy the holiday either. The intention is that the employee can recover from the obligations of the employment contract during the holiday (the so-called ‘recovery function’). If no (reintegration) work is performed, this is therefore not applicable.

No consent = no deduction

Therefore, an employee with reintegration obligations must take days off to go on vacation. However, this does not automatically mean that these days can be deducted from the vacation balance. The employee must explicitly agree in writing to deduct the days, for each holiday separately.

If the sick employee has requested permission to go on holiday and the employer has approved it, this does not automatically mean that the employee has agreed to deducting the vacation days. The employee must explicitly agree to this. Therefore, the employer is wise to explicitly ask for this before approving the holiday.

What if the sick employee does not agree to deducting the days? Can the employer then refuse the requested holiday? The Supreme Court has not yet answered this question. Our thought is that – if the employee cannot fulfill his reintegration obligations due to the holiday – it would be unreasonable not to agree to deducting the days. It has already been confirmed by the Supreme Court that an employee must agree to reasonable requests from the employer.

Previously approved vacation

What if the holiday was already approved and scheduled before the employee became ill? In practice, we often see that sick employees in such a situation still go on holiday. However, employers cannot assume that the employee has agreed to deducting the days, because – according to the Supreme Court – this must always be requested “when the absenteeism occurs”. A previous agreement on deduction via an HR system (when the employee was not yet ill) is therefore not sufficient. In this situation, the employer must request permission again for deducting the vacation days and the employee must confirm in writing that he agrees with this.

The above also applies to a mandatory company closure, such as a mandatory Christmas holiday stipulated in a collective labor agreement or employee handbook. Without the employee’s agreement, those days cannot be deducted from the balance when sick. Note, however, that the employer has the option to determine that non-statutory vacation days must be used for a mandatory holiday. Because deviations from the law can be made in writing for non-statutory vacation days according to article 7:638 paragraph 8 of the Dutch Civil Code, these days can be deducted from the balance – even during illness. However, this must be documented in a written agreement to which the employee or unions have agreed.

More information

Do you have any questions following this article on whether or not to write off vacation days? If so, please do not hesitate to contact us for advice.