A sick employee has certain rights, such as continued payment of 70% of wages during the first two years (104 weeks) of illness. A prohibition of termination (opzegverbod) also applies during that period.
Employers and sick employees also have certain reintegration obligations towards each other. The reintegration is aimed at reintegrating a sick employee within (in principle) its own place of work during the 104 weeks of illness, whether or not with its own (adapted) work or other suitable work. This is the so-called first track (spoor 1 traject). The employer also has the obligation to have the employee reintegrate at another employer’s company in suitable work if the first track is not or no longer possible. The employee is obliged to cooperate in this. This is referred to as the second track (spoor 2 traject). Both tracks often run simultaneously in the second year of illness.
The bill on amending reintegration obligations in the second year of illness for employees of small and medium-sized employers (the Bill) aims to make small and medium-sized employers more flexible and to provide clarity regarding the possible return of a sick employee at an earlier stage.
On the basis of the Bill, small employers (employers with a wage sum up to and including 25 times the average wage assessable for social insurance per employee) and medium-sized employers (employers with a wage sum between 25 and 100 times the average wage assessable for social insurance per employee) will, from the start of the second year of illness, be given the option to focus on reintegration in the second track if the conditions for closing the first track are met. Closure of the first track is possible in two cases:
- if the employee agrees (in writing); or if not,
- after approval by the Employee Insurance Agency (UWV).
The UWV tests:
- whether there is incapacity for work,
- the reintegration efforts during the first year of illness; and
- the possibilities the employee resumes its own (modified)work within 13 weeks of the end of the first year of illness.
Also, based on the Bill, a new ground for dismissal is added, the "j-grond". If the first track – in the situations as discussed above – is concluded, the obligation to continue to pay wages, the reintegration obligation and the prohibition on termination will remain in place. However, the employer no longer has to keep the employee's position available. When the employee fully recovers in the second year of illness and the employee's own position with the employer has not yet been filled by someone else, the employee has the right to return to this position. The j-grond is created for the situation that the employee’s "own" position has been filled by someone else after the first track has been completed. Based on this ground for dismissal, small and medium-sized employers (with the approval of the UWV) may terminate the employment contract of employees whose position is no longer available after the first track has been completed and the employee has fully recovered in the second year of illness. The employer must be able to prove that there are no redeployment possibilities.
Reactions to the Bill have so far been mixed. The Council of State, for example, has raised some objections regarding the Bill that, among other things, relate to the additional regulatory burden. Also, early termination of the employment contract is generally not in the interest of the employee.
The Internet consultation closed on 24 November 2023. Naturally, we will keep you informed about further developments.