Dutch law and regulations regarding to sick employees and COVID-19
If the employer has failed to fulfill its obligations under the Eligibility for Permanent Incapacity Benefit (restrictions) Act (in Dutch: “Wet Verbetering Poortwachter”) without a valid basis, the UWV will impose an additional salary payment obligation with a maximum of 52 weeks after the normal obligation of salary payment in the first 104 weeks of incapacity.
However, during the corona crisis, an employer may fail to fulfill the statutory reintegration obligations. As a result of the measures taken due to the corona crisis, the reintegration process of sick employees can be delayed or even come to a standstill.
How does the UWV deal with this and which situations are considered to be valid bases during the current corona crisis?
In an addendum to the “Work guide Poortwachter”, the UWV reveals how it deals with this type of situations in the current corona crisis.
Customization based on the substantiation of the employer
The starting point for the assessment of the reintegration report is the Work guide Poortwachter. If the UWV concludes in this assessment that the employer has made insufficient reintegration efforts, the UWV will then have to take into account the measures taken in the context of the corona crisis. The employer must therefore motivate how the situation in the company has (had) an impact on the reintegration process or its recovery as a result of the corona crisis.
The obligation to continue the pay wages has been imposed according to case law to remedy shortcomings in the reintegration. The employer must therefore be able to do this and if this is not possible as a result of the corona crisis (there is a valid reason), no extended salary payment obligation will be imposed. Depending on the arguments given, the UWV will have to provide customization and judge whether there is a valid basis.
Example of a valid basis
An example of a valid basis could be a mandatory company closure because of Covid-19 while the employee reintegrates into his own work or with his own employer (and working from home is not possible). The employer is expected, however, that if the employee can be relocated in accordance with the possibilities after the closure of the company in suitable work, there is (also to the employee) an irrevocable commitment that relocation will be realized after reopening.
Example no valid basis
Not being able to pay for a necessary “Labour Expert investigation” is not considered as a valid basis. The government provides financing for these matters by, among other things, providing guarantees for business loans.
After the corona crisis
Even after the corona crisis, a corona stagnation period will be taken into account in the assessment of the reintegration reports. In the reintegration report, the employer will have to motivate why and during which period the reintegration has stagnated / hindered.
Expert opinion: how is the reintegration going?
During the corona crisis, the employer (but also the employee) can request an expert opinion from the UWV. An expert is asked whether the employer (or employee) has made sufficient efforts to reintegrate. The expert opinion will be carried out by the UWV as far as possible on documents and remotely.
Unfortunately, it will not be possible in all cases to arrive at a substantive opinion, for example in connection with the necessary physical consultation hours with an insurance doctor. If this is the case, the employer cannot be blamed for subsequent reintegration report assessments that no expert opinion was requested during impasse / stagnant reintegration during this corona crisis.
Note: This does not release the employer and employee from the obligation to look for other options to continue the reintegration as much as possible.
If you need help with applying for an expert opinion (UWV) or if you have any other questions about the Dutch Law and regulations regarding tot sick employees, please don’t hesitate to contact Dutch Legal Experts.
Mai 5, 2020