Illness and reintegration

What we do

The rules regarding a sick employee are complex. When illness occurs, the Gatekeeper Improvement Act applies. This act describes all rights and obligations for the employer and the employee. Consequently, among other things, the employee is entitled to continued payment of at least 70% of their wages for 104 weeks (2 years).

The company doctor may determine that an employee must begin reintegration. From the start of reintegration, the employer must resume paying the full salary. In principle, the right to salary ceases once an employee has been ill for 104 weeks, and the employee may be dismissed. After dismissal, the employee is entitled to a transition payment.

As an employer and employee, you encounter a wide range of legislation and regulations. It is therefore important to follow the correct legal path. For both the employer and the employee, it can sometimes be unclear which rules apply and how specific rules should be applied in a given situation. Do you need legal advice? Then please contact us.

Illness and reintegration within employment law

Absenteeism due to illness and reintegration touch upon the core of employment law: the obligation to continue paying wages, reintegration obligations, and ultimately the question of whether employment can be terminated following long-term illness. This page falls under our Employment Law, within which our lawyers and in-house counsel guide employers and employees from the initial notification of illness to the end of the waiting period. We do this for every client, from an international corporation to the baker around the corner.

The statutory obligation to continue paying wages is laid down in Article 7:629 of the Dutch Civil Code (BW): in the event of illness, the employer pays at least 70% of the wages for a maximum of 104 weeks. The obligation regarding reintegration follows from Article 7:658a BW (employer) and Article 7:660a BW (employee). Furthermore, during illness, a prohibition on termination applies pursuant to Article 7:670 BW for the first two years.

The Gatekeeper Improvement Act: steps and timelines

The Gatekeeper Improvement Act (Wet verbetering poortwachter - Wvp) prescribes a fixed step-by-step plan with strict deadlines. Taking these steps in a timely and demonstrable manner is decisive for the employer's position during the WIA assessment. The key moments:

• Week 1: report sick to the occupational health service or company doctor.
• No later than week 6: problem analysis by the company doctor.
• By week 8 at the latest: action plan, which is evaluated periodically (at least every six weeks).
• Week 42: notification of illness to the UWV.
• Around week 52: first-year evaluation.
• Around weeks 88-91: drafting the reintegration report (RIV) in preparation for the WIA application.

In reintegration, a distinction is made between the first track (return to own or adapted work with the own employer) and the second track (reintegration with a different employer). Starting the second track too late is a common cause of problems.

Wage sanction and expert opinion

If the UWV determines that reintegration is insufficient, the UWV may impose a wage sanction during the WIA assessment: the obligation to continue paying wages is then extended by a maximum of 52 weeks (one-third of a year of illness). This can be a significant expense that could often have been avoided with a well-documented file.

If disagreement arises during the process – for example, regarding whether the employee is cooperating sufficiently, whether the employer is doing enough, or whether the offered work is suitable – both parties can request an expert opinion from the UWV. We advise employers and employees on when an expert opinion is advisable and how the file should be compiled.

Disputes during reintegration

Not every absenteeism process runs smoothly. If an employee fails to cooperate with reintegration without valid grounds or refuses suitable work, the employer may stop or suspend wage payments pursuant to Article 7:629 paragraph 3 of the Dutch Civil Code – a far-reaching measure that must be exercised with care. Conversely, an employee who disagrees with the company doctor's assessment may request a second opinion or expert opinion.

A special category is situational incapacity for work: the employee is not medically ill, but is factually unable to perform their work due to a labor dispute or circumstances at work. Case law (including the Mak/SGBO judgment) sets specific requirements regarding continued payment of wages and mediation in this regard. It is important for both employer and employee that these types of situations are interpreted correctly from a legal perspective.

End of waiting period: dismissal, WIA and dormant employment

If the employee remains incapacitated for work after 104 weeks and recovery is not expected within 26 weeks, the employment relationship may be terminated by means of a dismissal permit from the UWV or by means of a settlement agreement. Upon termination, the employee is in principle entitled to the transition payment (Article 7:673 of the Dutch Civil Code); employers can reclaim this via the UWV compensation scheme.

Around the end of the waiting period, the WIA assessment also takes place, which determines whether the employee is entitled to a WIA benefit. Employers who allow the employment relationship to continue after two years of illness solely to avoid the transition payment run up against the doctrine of the “dormant employment relationship”: since the Xella ruling by the Supreme Court, an employer is in principle obliged to cooperate in termination with the granting of the transition payment. We assist with both the settlement of dormant employment relationships and the associated compensation application.

How MKB Juristen assists you

In cases of illness and reintegration, employment law, absenteeism regulations, and business interests converge. Our mixed teams of lawyers and in-house counsel monitor gatekeeper periods, build the reintegration file, conduct negotiations with the UWV, company doctor, and the opposing party, and arrange termination and compensation where necessary. We do this for both the employer who wants to maintain control over the absenteeism file and the employee who wishes to safeguard their rights.

This page is part of our Employment Law. Also view our pages on disability and dismissal law. Questions about a specific absenteeism or reintegration case? Feel free to contact us.