Incapacity for work

What we do

The impact of (long-term) incapacity for work usually extends beyond just the employee in question. A situation of incapacity for work can also have a far-reaching influence on, for example, colleagues and the family at home. Essential is the manner in which communication takes place, contact is maintained, and solutions – such as reintegration – are sought. Within our practice group, we therefore look beyond employment law alone. In addition to knowledge of the many statutory rules and regulations, we understand the social context and the entire playing field of interests, from occupational health services and company doctors to the UWV and treatment providers. We provide comprehensive advice, offer extensive support, and attempt to prevent and resolve conflicts through mediation, coaching, or conciliation. In the event of a conflict, we carefully safeguard interests and have extensive experience conducting proceedings before the UWV or the courts. Examples include:

• Continued payment of wages during illness
• Duty of care and reintegration
• Coincidence of vacation and illness
• Degree of disability
• Preventing wage sanctions
• Suspension or termination of wages
• Objection and appeal
• Second opinion and expert assessment
• Company doctor's liability
• Working conditions
• Privacy
• Dismissal of sick employee
• Obligations after dismissal and self-insurance
• Dormant employment contracts and compensation for transition payments

Do you have questions regarding disability? Please contact us.

Incapacity for work within employment law

Incapacity for work means that an employee is no longer able to perform their own work, either wholly or partially, due to illness or disability. Within employment law, this subject touches upon a dense network of statutory obligations: continued payment of wages, reintegration, the prohibition against dismissal during illness, and ultimately, affiliation with social security. At MKB Juristen, lawyers and in-house counsel work together to ensure you receive both sharp litigation advice and practical guidance in the workplace. We assist international corporations with comprehensive HR departments as well as the baker around the corner dealing with a long-term sick employee for the first time.

Continued payment of wages during illness

If an employee falls ill, the employer is, in principle, required to continue paying wages for a maximum of 104 weeks (two years). Article 7:629 of the Dutch Civil Code stipulates that the employee retains the right to at least 70% of wages during this period, with at least the statutory minimum wage applying during the first year of illness. Higher percentages have been agreed upon in many collective labour agreements and employment contracts. There are limits to the obligation to continue paying wages: if the employee refuses to cooperate with their recovery or reintegration, the employer may suspend or even terminate wages. The distinction between wage suspension (in case of doubt as to whether someone is ill) and wage termination (in the event of failure to comply with reintegration obligations) is of great legal importance and is often applied incorrectly in practice. We assess whether the correct measure has been taken on the correct grounds, ensuring that a wage claim or counterclaim holds up legally.

Reintegration and the Gatekeeper Improvement Act

From the first day of illness, both the employer and the employee have a reintegration obligation. The Gatekeeper Improvement Act (Wet verbetering poortwachter) prescribes a fixed process involving a problem analysis, an action plan, periodic evaluations, and ultimately a reintegration report (RIV). In this process, the employer must be assisted by a company doctor or occupational health and safety service and, pursuant to Article 7:658a of the Dutch Civil Code, actively promote suitable work – first within the company itself (first track), and if that fails, with another employer (second track). Pursuant to Article 7:660a of the Dutch Civil Code, the employee must cooperate with reasonable reintegration efforts and accept suitable work. We guide employers in building a case file that passes the gatekeeper test and assist employees who disagree with the proposed reintegration or with a wage measure.

Expert opinion and second opinion

If the employer and employee disagree regarding the incapacity for work, the suitability of the work, or the reintegration efforts made, an expert opinion can be requested from the UWV. This independent opinion is often decisive in an employment dispute and is, in many cases, a prerequisite before the court assesses a wage claim on its merits. In addition, the employee is entitled to a second opinion from another company doctor. We advise on the strategic and timely use of these instruments so that you do not appear before the court empty-handed.

Prevent a wage sanction from the UWV

If the UWV assesses during the WIA application that the employer has made insufficient reintegration efforts, a wage sanction may follow: the obligation to continue paying wages is then extended by a maximum of 52 weeks, in addition to the initial 104 weeks. For employers, this represents a significant cost that usually arises from deficiencies in the reintegration file. An objection (and subsequent appeal) can be lodged against a wage sanction; in many cases, the sanction can be shortened by rectifying the identified shortcoming. Our employment law specialists assess the chances of success in an objection procedure and assist with the rectification of the file.

WIA, IVA and WGA after two years of illness

After 104 weeks of illness, the obligation to continue paying wages ceases in principle, and the UWV assesses the entitlement to a benefit under the Work and Income (Capacity for Work) Act (WIA). Anyone with less than 35% disability generally remains employed without a WIA benefit. For disability of 35% to 80%, or for full but not permanent disability, the WGA applies; for full and permanent disability, the IVA applies. The degree of disability and the choice between WGA and IVA have significant financial consequences, including for employers who are self-insurers. We advise on objections to the WIA assessment and on the position of the self-insurer.

Dismissal of a sick employee

During the first two years of illness, a prohibition on termination applies: pursuant to Article 7:670, paragraph 1, of the Dutch Civil Code, the employment contract may, in principle, not be terminated due to illness. Only after 104 weeks of incapacity for work can the employer, with the permission of the UWV (Dutch Social Security Agency), terminate the contract due to long-term incapacity for work pursuant to Article 7:669, paragraph 3, subsection b, of the Dutch Civil Code. One of the conditions is that recovery is not expected within 26 weeks and that reassignment is not possible. Dismissal due to a different matter – for example, a strained working relationship or poor performance – requires careful demarcation in relation to the illness. We assess whether a proposed dismissal is legally defensible and prevent proceedings that fail due to the prohibition on termination.

Transition payment and dormant employment

Upon termination following long-term incapacity for work, the employee is entitled to a transition payment pursuant to Article 7:673 of the Dutch Civil Code. To avoid these costs, employers sometimes allowed the employment relationship to “sleep”: the employee remained employed without pay or work. In the Xella judgment (Supreme Court, 8 November 2019), it was ruled that, based on the principle of good employment practice, an employer is in principle obliged to cooperate in terminating a dormant employment relationship with the granting of a transition payment, unless there is a justified interest in continuation (such as realistic reintegration possibilities). Employers can reclaim the paid transition payment via the compensation scheme at the UWV, provided that actual payment is demonstrated. We calculate the payment, conduct negotiations regarding termination, and handle the compensation application.

Frequently asked questions about disability

How long must I, as an employer, continue paying wages during illness?
In principle, 104 weeks, with at least 70% of the wages pursuant to Article 7:629 of the Dutch Civil Code. In the event of deficiencies in reintegration, the UWV (Dutch Social Security Agency) may extend this period by a maximum of 52 weeks through a wage sanction.

Am I allowed to dismiss a sick employee?
During the first two years, the prohibition on termination under Article 7:670, paragraph 1 of the Dutch Civil Code applies. Dismissal due to long-term illness is only possible via the UWV after 104 weeks of incapacity for work, provided that recovery is not expected within 26 weeks and reassignment is not possible.

What is a dormant employment relationship?
An employment relationship that continues after two years of illness without pay or work, often to avoid the transition payment. Since the Xella ruling, the employer must in principle cooperate with termination upon payment of the transition payment.

What can I do about a wage sanction from the UWV?
You can lodge an objection and reinstate the reintegration file; in many cases, this can shorten the sanction. We assess the chances of success before you proceed.

Assistance with disability from MKB Juristen

Whether you are an employer seeking to avoid a wage sanction, or an employee disagreeing with a wage freeze or reintegration process: our employment lawyers and in-house counsel provide comprehensive support. We work for international corporations as well as small business owners, with an eye for both the legal aspects and the human side of disability. This subject is part of our broader expertise in Employment Law. Do you have questions regarding disability? Please contact us.