When is one considered to be a sick employee?
Within labour law, an employee is regarded as sick when the employee is unable to perform his or her work due to a mental or physical disability. When an employee reports sick, it is not up to the employer to judge whether the employee is actually ill. A company doctor must be called in for this. A company doctor is able to determine the nature of the absence, in other words: the employee's illness, in an objective manner. The moment an employee reports sick, it is up to the employer to assess whether it is necessary to call in a company doctor. When it is expected that the employee will reappear to work within a few days to perform his duties, this is not by definition necessary. If the employer expects that absenteeism will continue for a longer period of time, we certainly recommend calling in a company doctor. The company doctor plays a major role in the reintegration of the employee. If the employer does not comply with the legal requirements for reintegration, he runs the risk of having to continue to pay the employee's salary for more than two years. This is a major cost item. The obligation to continue to pay wages in the event of illness is discussed in more detail below.
Obligation to continue to pay wages in case of illness
An employer is obliged to continue to pay the employee's wages in case of illness. The wage that must be continued to be paid is at least 70% of the daily wage. Of course, employer and employee can also agree that a higher percentage is paid in case of sickness. Moreover, in the first year of sickness absence, if the continued payment of 70% results in an employee's salary falling below the minimum wage, the employer must supplement the salary up to the minimum wage limit. This does not apply in the second year of illness. In that case, the employee can apply for benefits from the UWV for the remainder. In order to ensure that the obligation to continue to pay wages stops after two years, it is important for the employer to comply with the various reintegration obligations. Below you will find an overview of all the different steps that have to be completed during the sick leave process.
Reintegration step-by-step plan
Step 1: notification of illness and determination of incapacity for work
The notification of illness shall be made in the manner included in the employment contract and/or personnel manual. Usually this will be by telephone.
Please note that different rules apply with regard to the privacy of the employee. These rules derive from the General Data Protection Regulation (GDPR) and are explained by the Authority for Personal Data in the 'Policy Rules for the Processing of Personal Data on the Health of Sick Employees'. In short, it comes down to the fact that the employer may only ask questions that relate to reintegration. This means that the employer may not ask about the employee's clinical picture (the diagnosis) and/or functional limitations. These questions are asked by the company doctor. The employer may only ask in what way the employee thinks he or she can return to the organisation and what he or she needs in order to do so. If the employee discusses a diagnosis/illness, the employer may not document this.
After the employee has reported sick, the degree of disability must be determined. This is done by the company doctor. The company doctor will then report his findings (within six weeks). This report will show (i) what the company doctor's estimated duration of sick leave will be and (ii) what (possible) reintegration possibilities there are. In addition, the company doctor will draw up a problem analysis and give advice on concrete steps to be taken to accelerate the recovery of the employee.
Step 2: Reintegration
After the company doctor has given his opinion to the employee, the employer must draw up an action plan for reintegration together with the employee. First of all, it will be examined whether the employee can reintegrate into his own function. If this is not possible, another suitable position within the organization will be sought. If this is also not possible, a job with another employer will be sought. The latter is only possible if the UWV or the company doctor have given their approval and there is actually no possibility for the employee to be re-integrated into his own organisation. Integration with another employer is referred to as reintegration in the second track.
Step 3: Completion of the period of obligation to continue to pay wages
In principle, the employer's obligation to continue to pay wages ceases after two years of illness. From that moment on, the employee is entitled to a WIA benefit. WIA stands for Wet Werk en Inkomen naar Arbeidsvermogen (Work and Income according to Labour Capacity Act). There are two different types of WIA benefits, namely the WGA (Resumption of Work Partially Eligible for Work) and the IVA (Income Provision Fully Eligible for Work). Before applying for a WIA, it will be necessary to calculate the percentage for which the employee is incapacitated for work. Based on the outcome of this calculation, it can be determined to which benefit the employee is entitled. An employee who turns out to be 35% or less incapacitated for work cannot appeal to either the IVA or the WGA. It is expected that this employee will continue to be employed by his current employee for the percentage that he or she is incapacitated for work. If there is no suitable position for this employee, he can apply for unemployment benefit. An employee who is 35-80% unfit for work on a permanent basis is entitled to a WGA benefit and an employee who is 80-100% unfit for work on a permanent basis is entitled to an IVA benefit.
Attention: gatekeeper test
As indicated above, the obligation to continue to pay wages ends in principle at two years. However, this may turn out differently. Before the UWV handles the WIA claim, the UWV will perform the so-called gatekeeper test. In this test, the UWV checks whether both the employer and the employee have made sufficient efforts for reintegration. If it appears that the employer has not done this sufficiently, the UWV will suspend the WIA and impose a wage sanction. This means that the employer must continue to pay wages for a further 52 weeks.
In conclusion
The purpose of this page is to give you a better idea of the steps that need to be taken during an absenteeism process. If you have specific questions about this or if you would like guidance in managing an absenteeism project, please feel free to contact us.