Dutch law provides that during the first 104 weeks of sickness/disability to work, the employee is entitled to a minimum of 70% of the wages. If this 70% turns out to be less than the statutory minimum wage, the employee is entitled to the statutory minimum wage during the first year of sickness.
Many employers diverge from this rule and agree to pay more (100%) the first year and 70% the second year. Sometimes a Collective Labor Agreement (“CLA”) provides for a higher percentage as well.
The employer is only entitled to deviate from this general rule by observing two “waiting days”. These are the first two days of sickness during which no salary is due. It it is only possible to apply waiting days if parties agree upon such a ruling in writing in a collective and/or individual employment agreement.
The salary during sickness or disability to work is subject to deduction of any benefits to be received by the employee and can be maximized to the maximum daily pay (in Dutch: “maximum dagloon”).
The employee is not entitled to wages in case the sickness has been caused deliberately or if the employee does not cooperate with the reintegration.
During the sickness of the employee, both employer and employee should do everything to make sure that the employee will become fit for work again.
In the Netherlands, reintegration is the main objective of the procedure during sickness (if possible). In case of long-term disability, specific rules apply. The sickness should be reported to the company doctor, who will qualify and monitor the incapacity of the employee. The employer should draft an action plan together with the employee on how to proceed, and there should be a periodic meeting with the company doctor to evaluate the status of the employee’s disability to work.
Sometimes the employee is fit for work for a certain percentage, this should be coordinated by the company doctor and the employer should do its utmost to provide the employee with suitable work. If no suitable work is available within the company of the employer, it can be expected that the employer funds and seeks for employment elsewhere and/or provides for outplacement.
If the two-year period of sickness has passed, the obligation to pay wages ends, unless the employee Insurance Agency (In Dutch: “UWV”) is of the opinion that employer did not do enough to reintegrate the employee. In this case the employer risks that the two-year period in which the employer is obliged to continue to pay an employee's salary, will be extended (in Dutch: “loonsanctie”).
In general under Dutch employment law, there is a prohibition against termination of employment during an employee's sickness (in Dutch: "opzegverbod tijdens ziekte"). This is a very strict rule in (for the reason of protecting the employee) and it is nearly impossible to deviate from it.
If you have any questions regarding illness and employment law in The Netherlands, please contact our employment law attorneys here.