9 January 2023
An employee who is unfit for work is entitled to continued payment of wages for two years. They may also not be dismissed during that time.
What if the employee has recovered after this period, but is unfit for work again four weeks later? Then the obligation to continue paying wages and the prohibition on dismissal will apply for another two years. But when has an employee ‘recovered’, so that a new incapacity for work phase starts after a sickness report?
In the case in question, an employee had reported sick on 8 August 2017 as a result of medical treatment. After more than two years, the treatment was complete and he would only have one hourly appointment each a week. This was part of a follow-up phase. On the advice of the company doctor, the employee was reported 100% fit for work from 2 September 2019. After working for more than six weeks, the employee reported sick again on 16 October 2019, with the same cause of illness. The employer informed the employee that it viewed this sickness report as a continuation of the 2017 absenteeism. Therefore, in its view, the employee had not actually recovered during those six weeks.
The employee applied to the Court asking whether there was indeed an ongoing period of sickness. However, the Court found this irrelevant. It referred to the difference between sickness and the incapacity for work (see rendement.nl/mttools), with only the latter playing a role in this case. Indeed, the case comes down to the question of whether or not the employee was able to perform the stipulated work in the period following the recovery report. ‘Stipulated work’ means ‘the work the employee is required to perform under his contract of employment’.
Both the Court and the Subdistrict Court held that the sickness report of 16 October 2019 should be regarded as a new sickness report. As a result, there is a new obligation to continue to pay wages because the employee was fully able to perform his stipulated work in the period between 2 September 2019 and 16 October 2019. If the employee performs his own work in the four weeks following his recovery report and is then unfit for work again, the law basically considers this as a new sickness report.
This means that in the run-up to a recovery report, both the employee and the company doctor should be consulted. The latter can investigate whether the imminent recovery is lasting or whether renewed absenteeism can be expected. If the company doctor considers that the recovery is not lasting, then it is a better option if the employee continues to report partially unfit for work. In addition, the employer must investigate whether the employee can actually perform the stipulated work after a recovery notification. If the employee does not perform certain facets of the task package or does not perform them adequately, this may be a sign that he is unable to perform the stipulated work as yet and is therefore not fully fit for work. Court of Appeal Arnhem-Leeuwarden 3 May 2022, ECLI (abridged): 3538
If an employee reports sick, the employer is not only obliged to continue to pay wages. The employer must work together with the employee to ensure that the employee can return to work as soon as possible. If the employee is unable to perform his own work, suitable employment should be offered. Suitable work can be one’s own work in adapted form. However, an employee may perform suitable work for an extended period and it may appear that the employee will be unable to return to his own work. The suitable work can then become the stipulated/own work under certain circumstances.
In that case, the employee will also no longer be unfit for work. He is then fit for his new own work. If the employee is then absent due to illness, a new incapacity for work period also starts. To prevent suitable work from unknowingly becoming stipulated work, it is important to make clear agreements on this. This can take place in appraisal interviews during the rehabilitation procedure or in the period leading up to the possible recovery report.
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