The law prescribes that employers keep paying the wages of employees during the first 104 weeks of their incapacity for work. If there are consecutive periods of illness with an interruption of less than four weeks, these periods will be aggregated. This means that, if an employee has been fully recovered during a period of four weeks or longer, a new period of 104 weeks will commence in which the employee is liable to pay wages. It does not make any difference whether the employee drops out due to the same or different complaints.
Employers can feel this obligation to continue paying wages as a burden. A recent judgment of the Court of Appeal of Arnhem-Leeuwarden dealt with the question whether an employer can avoid having to start paying wages for another 104 weeks upon an employee's new dropout after a four-week recovery, by keeping the employee in the records as ill.
Is it permitted to make an administrative sickness report?
The employee had been ill from 9 May 2011 to 6 May 2013. Previously, she had been working 32 hours per week. Starting from 6 May 2013, the UWV awarded the employee benefits under the WIA/WGA scheme. After she was awarded these benefits, the employee began doing suitable work during 20 hours per week.
During a period when the employee was fully performing the suitable work, the employer entered the employee into the records as being 10% incapacitated. This was in line with the employer's sickness absence protocol: employees who could be expected to drop out again within three months were registered as 10% incapacitated as a rule, even if they were already working their full contractual hours again.
The Court of Appeal has now ruled that this practice is unacceptable under employment law. By acting thus, the employer could determine by itself, without any clear medical grounds, whether a period of more than four weeks of recovery existed within the meaning of Section 7:629 (10) DCC, which could prevent the arising of a new obligation to continue paying wages.
However, in this case it turned out that no renewed obligation to continue paying wages existed after all. The employee had been incapacitated for the stipulated work for more than 104 weeks, which meant that she was no longer entitled to continued payment of wages during illness. Because the stipulated work had not been adjusted (tacitly or otherwise), no new period of 104 weeks had commenced.
Conclusion
This court ruling confirms that the risk of having an employee drop out again after having resumed work for more than four weeks, is for the employer's account. The employer cannot shift the risk of the occurrence of a new period of having to pay wages, since that would be contrary to the legal system. In other words, the employer is not free to decide whether an employee is ill or not. If the employer has doubts, the opinion of the company doctor – or if necessary the UWV via an expert opinion – will be decisive. Only the company doctor and the UWV can decide whether an employee is not yet fully recovered or fully deployable.
Please contact Lisa Klumperink if you have any questions.
