Incapacity for work and sickness
The concepts of ‘sickness’ and ‘unfit for work’ are in practice used interchangeably. In the event of a sick employee, he or she does not have to be incapable of working. If an employee, in spite of certain complaints, can still fully carry out his or her work, there is, in principle, no incapacity for work.
Medical opinion and incapacity for work
The first period of sickness often runs without too many employment law issues, if there is no discussion regarding the incapacity for work of the employee. The occupational physician must give a medical opinion if the sickness lasts longer. If you disagree with this advice, an expert opinion can be requested from the Employee Insurance Agency (UWV). Asselbergs & Klinkhamer Advocaten can provide you with advice regarding the settlement of conflicts in the field of incapacity for work and medical opinions, as well as the possible employment law consequences thereof.
Various (statutory) rehabilitation obligations apply to the employer as well as the employee. There are various rules in the Eligibility for Permanent Incapacity Benefit (Restrictions) Act from which it is evident what the employer and the sick employee must do in order to keep the absence as short as possible. Various parties are involved in reintegration, namely the employer, the employee, the occupational health and safety service or occupational physician, reintegration companies and the Employee Insurance Agency. These parties each have their own tasks and duties. If the employee does not fulfil the (statutory) obligations, this can result in suspension of salary, pay freeze or even dismissal. The employer runs the risk that an extension of the period in which the employer is obliged to continue to pay an employee’s salary may be imposed, which means that the obligation of payment of salary in case of sickness is extended. The lawyers of Asselbergs & Klinkhamer Advocaten can assist the employer as well as the employee if problems arise during the reintegration process.
The employee has the right to continued payment of salary when he or she is sick or is unfit for work. This is an exception to the general rule of ‘no work, no pay’. According to the law, the duration of continued payment of wages is 104 weeks from the first sick day and the extent is at least 70% with a minimum and a maximum. During the first 52 weeks the employee has the right, on the basis of the law, to at least the minimum wage, while the maximum is linked to the maximum daily wage. It can be specified in a collective labour agreement or individual employment contract that, in case of sickness, the employee has the right to more continued payment of wages than the law prescribes.
In some cases, the employer can suspend the salary, for example when the employee does not provide information which the employer requires in order to establish the right to wages in case of sickness, whilst the employer has given reasonable regulations in writing for this. An occupational health and safety physician can inspect if the employee is sick and has the right to wages. However, the employer must first and in a timely manner inform the employee of the fact that the employer has the intention of proceeding with a pay freeze or suspension of salary. There are a number of exceptions in the law to the right of payment of salary. In that case the employer does not have to pay the salary.
The Employment law department of Asselbergs & Klinkhamer Advocaten can research for you what the duration and extent of the obligation to continue to pay salary is, and whether the salary can possibly be suspended.
Asselbergs & Klinkhamer Advocaten provides advice and is involved in the settlement of conflicts as a result of sickness of an employee, incapacity for work and the dealing with reintegration problems. Our lawyers can also act as mediator to keep a good relationship between employer and employee intact.