The aim of this draft bill is to make small and medium-sized employers more agile by providing earlier clarity on how long they must keep a sick employee’s own position available. This would allow them to proceed with replacement sooner. Below we discuss the key elements of the draft bill, preceded by a brief explanation of the current system.
Current system
Under the current system, if an employee is unfit for work due to sickness, the employer is required for a period of 104 weeks to continue paying salary and to comply with reintegration obligations. There is also a prohibition on termination for at least two years.
Employer and employee are jointly responsible for reintegration. The objective is for the employee to return sustainably to suitable work that matches their remaining capabilities. The first step is to assess whether a return with the same employer is possible: in the employee’s own role, in adjusted work, or in other suitable work (Track 1 reintegration pathway).
If, due to illness or disability, there is no prospect of sustainable return to work within the employer’s organisation, then – where work capacity exists – an appropriate reintegration pathway outside the organisation must be started (Track 2 reintegration pathway). This must take place at the latest within six weeks after the first-year evaluation, i.e. six weeks after the first 46–52 weeks of sickness absence. After the first-year evaluation, the Track 2 reintegration pathway may be omitted only if there is a concrete prospect of return to work within three months under the Track 1 reintegration pathway. The costs of implementing the Track 2 reintegration pathway are also borne by the employer (possibly via private insurance).
Proposed amendments
i. Clear moment for closing the Track 1 reintegration pathway
Small and medium-sized employers will have the option, from the start of the second year of sickness (no later than week 52 of sickness absence), to focus exclusively on reintegration under Track 2. However, the employer cannot simply (unilaterally) terminate the Track 1 reintegration pathway. The starting point is that employer and employee jointly decide to close the Track 1 reintegration pathway and record this in writing. The employee will then have a reflection period of, in principle, 14 days.
The advantage is that, once the Track 1 reintegration pathway has been closed, the employer no longer has to keep the employee’s (original) position available (even after full recovery). The employer may then hire a replacement for the agreed work of the sick employee. In the second year of sickness, reintegration of the sick employee is then entirely focused on the Track 2 reintegration pathway. If the employee fully recovers during the second year, employer and employee must, for the remainder of that year, continue to make efforts to enable the employee to return to work with another employer.
ii. Substitute consent from UWV and recourse to the court
If the parties do not reach agreement and the employer nevertheless wishes to close Track 1, the employer must request UWV’s consent no later than week 42 of sickness absence. UWV will carry out three assessments:
- Is the employee unfit for work?
- Have the reintegration efforts during the first year of sickness been sufficient?
- Are there opportunities for return to work within Track 1 within 13 weeks? This third assessment does not apply if, at the end of the first year of sickness, the employee has not returned to work at all.
If the parties disagree with UWV’s decision, they may apply to the subdistrict court (kantonrechter) (i.e. no administrative objection/appeal procedure):
- If the employee disagrees with UWV’s decision to close Track 1, the employee may ask the subdistrict court to order the employer to resume Track 1.
- If the employer disagrees with UWV’s refusal to allow Track 1 to be closed, the employer may ask the subdistrict court for substitute consent.
iii. New ground for dismissal
The draft bill introduces a new ground for dismissal for situations in which Track 1 has been closed after one year. The small or medium-sized employer may rely on this ground both where the employee is still unfit for work and where the employee has fully recovered. When applying on the basis of this new ground for dismissal, small and medium-sized employers must first make it plausible that there is a reasonable ground for dismissal. A reasonable ground for dismissal may exist under this new ground if, by agreement between employer and employee or with UWV’s consent after the first year of sickness, the Track 1 reintegration pathway has been closed. In dismissal cases, UWV will also assess – only for medium-sized undertakings – whether redeployment options exist.
The draft bill has currently only been submitted to the House of Representatives (Tweede Kamer). Whether, when, and in what form it will be adopted is still uncertain. We will of course keep you updated.