By: Transition Pay
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Dutch Employers Must Continue Rehabilitation Efforts During COVID-19
Employers in the Netherlands must adhere to strict labor and employment requirements established by the new Labor Market in Balance Act (Wet arbeidsmarkt in balans, or WAB), and these requirements apply even during the ongoing coronavirus pandemic. According to a recent addendum to the Employee Insurance Agency’s (Uitvoeringsinstituut Werknemersverzekeringen, or UWV) Werkwijzer Poortwachter (Permanent Incapacity Benefit Guidelines), the COVID-19 crisis does not give Dutch employers an excuse to stop their rehabilitation efforts for employees who are on leave because of a long-term illness. If you are on sick leave in the Netherlands and your employer has not undertaken all reasonable efforts to ensure that you are able to return to work, contact our skilled transition pay attorneys to find out how we can help. We have extensive experience helping Dutch employees recover the compensation they are entitled to when their employers fail to follow the proper protocol required by law.
Sick Leave Pay Requirements in the Netherlands
According to the changes to Dutch employment law implemented under the WAB, which entered into force earlier this year, employers in the Netherlands must continue paying the salary of employees who are on leave because of an illness during the first two years of the illness. During this two-year sick-leave period, employers are prohibited from dismissing a long-term incapacitated employee, unless the employer has reasons for doing so that are not associated with the employee’s illness. For instance, if the company is shutting down or if the employee is found to have engaged in theft or some type of fraudulent behavior, the employer may have grounds to terminate the employee’s contract during the sick-leave period. If a Dutch employer dismisses an employee without cause during the first two years of illness, the employee has the right to challenge the validity of the contract termination.
Employers’ Rehabilitation Responsibilities During Sick Leave
Dutch employers are also obligated to take every reasonable measure to ensure that long-term ill employees are able to return to work as quickly as possible, preferably to the same job and with accommodations, if necessary. In cases where this is simply not possible, the employer is expected to help the employee return to a similar position within the company (known as first-track rehabilitation) or an alternative suitable position outside of the company (known as second-track rehabilitation). Once this two-year sick-leave period has passed, if the employee is still unable to return to work, the employee can apply for sickness benefits with the UWV. At this time, the UWV will assess whether or not the employer has satisfactorily fulfilled his or her rehabilitation duties. If the UWV finds that the employer failed to undertake the required rehabilitation efforts, the agency may require the employer to pay the employee’s salary for another year.
Sick Leave and Employee Rehabilitation During COVID-19
The COVID-19 crisis has thrown a wrench into many companies’ normal operations and the UWV has acknowledged the fact that, because of the ongoing coronavirus pandemic, it is not always possible to do enough to promote the rehabilitation of employees who are on sick leave. However, the UWV warns that COVID-19 is not an excuse for employers to allow their rehabilitation efforts to lapse. The recent addendum to the UWV’s Permanent Incapacity Benefit Guidelines highlights what is expected of Dutch employers during COVID-19:
- Continued payment of wages – Any employer who fails to meet the rehabilitation requirements mentioned above without good reason will be obligated to continue paying the employee’s wages for a maximum of one additional year while the UWV evaluates the employee’s application for sickness benefits following two years of illness.
- An explanation for an incomplete rehabilitation report – Should an employer fail to carry out the proper rehabilitation duties during COVID-19, the employer must provide an explanation for how the coronavirus pandemic has affected their company and how this, in turn, obstructed the rehabilitation process.
- Provide a proper basis for an incomplete rehabilitation process – Per the Poortwachter COVID-19 addendum, the following situations may constitute a proper basis for any failure to complete the rehabilitation process:
- If the employer can provide a concrete explanation for why the rehabilitation process was not completed;
- If the company closed due to COVID-19;
- If the employer was unable to implement second-track rehabilitation as a result of the pandemic;
- If the employee was unable to return to work because of fewer job opportunities at the company.
Transition Pay Upon Dismissal in the Netherlands
If an employee in the Netherlands has been ill for more than two years and is still not able to return to work, the employer is legally permitted to terminate the employment contract with authorization from the UWV. At this point, the employee is entitled to collect a transition payment (transitievergoeding), intended to compensate employees for lost income resulting from the termination of their employment contract. Per the Netherlands’ Transitional Compensation Fee Scheme, employers can now request compensation from the UWV for transition payments made upon dismissal of long-term ill employees.
Contact Our Dutch Employment Law Attorneys for Legal Help
Employees in the Netherlands have important rights when it comes to sick leave and transition pay and some employees may have questions about these rights with respect to the ongoing coronavirus pandemic and the effect the crisis has had on businesses around the world. In spite of the significant challenges and uncertainty caused by COVID-19, the UWV has made it clear that doing nothing about rehabilitating long-term incapacitated employees is simply not an option. If you were on leave because of an illness and your employer failed to undertake every reasonable effort to ensure that you returned to work during the first two years of the illness, you may be entitled to another year of wages. Or, if your employer terminated your employment contract without cause before the two-year mark, you may have grounds to challenge the dismissal. For more information about Dutch dismissal law and the rights and protections afforded by the WAB, consult our Dutch employment specialists.