Let us assume that you, as an employer, has been following the advice of the company doctor for two years. Nevertheless, the UWV may conclude in its review of the reintegration process that your reintegration efforts have been insufficient, and may impose a wage sanction on you. This is why many employers feel they are in the dark about their employees on long-term sickness absence.
The Cabinet wants to diminish this uncertainty; in the bill that is now awaiting the advice of the Council of State, the advice of the company doctor about the work capacity of the employee will get a leading role in the so-called RIV test. A similar bill was presented to the Lower House of Parliament a few years ago. See our previous article about this via this link. This bill did not result in legislation at the time.
How does the RIV test work at present?
If an employee drops out due to illness, the employer is obliged to make a serious effort aimed at the employee's reintegration. The employer must seek the assistance of a company doctor in the guidance of a sick employee. The company doctor has an advisory role in absence counselling and advises the employer about the employee's occupational disability, resumption of work, and reintegration.
If the reintegration efforts do not result in a resumption of work by the employee, after two years of illness the employee will apply for WIA disability benefits to the UWV. The required enclosures with this application include the reintegration report (in Dutch: “RIV”).
On the basis of the reintegration report, the UWV determines whether the employer and the employee together have made “sufficient” efforts towards reintegration. If the UWV concludes that these efforts are insufficient, the UWV may impose a wage sanction. This means that the employer will have to keep paying the employee's wages for a longer period of 52 more weeks maximum, and that the ban on termination will also be prolonged by this same period.
The current system makes it possible in certain cases for an insurance doctor of the UWV to give a medical opinion of his own about the employee's work capacity, for example if the company doctor has assumed a medical restriction of hours, or has found none, or only minor, usable reintegration options for the employee (temporarily or not). If it appears afterwards that the relevant opinion of the insurance doctor differs from that of the company doctor, this may result in the imposition of a wage sanction on the employer, even though the employer has structurally followed the advice of the company doctor. According to the bill’s Explanatory Memorandum, in the period 2022–2024 such a medical difference of opinion was the main cause of 8% of the substantive wage sanctions.
What changes to the RIV test does the bill propose?
According to the Bill to Amend the Reintegration Test and the WIA Advance Payment Scheme, in its review of the RIV report the UWV will henceforth depart from the correctness of the advice of the company doctor about the employee’s work capacity. This will cause the core of the RIV test to shift to the question: have the employer and the employee made reintegration efforts in line with the advice of the company doctor? Notwithstanding the above, wage actions still remain possible if the UWV believes that chances have been missed within this medical context. However, the bill seeks to abolish one of the grounds for such actions: that of “a medical difference of opinion between the company doctor and the insurance doctor”.
The intended entry into force of this part of the bill is 1 January 2028.
What does this mean concretely for employers?
This bill makes the advice of the company doctor even more decisive as a compass for the reintegration steps to be taken. Clear, concrete advice of the company doctor and a well-documented case file will narrow the room for debate about the RIV test.
If you have questions about reintegration during illness or absence files, please feel free to contact us.
