It happens every day that employees fall ill and, as a result, are no longer able to perform their work (incapacitated). Employers have an obligation to continue paying wages for 104 weeks after the onset of occupational disability, whereby at least 70% of the salary must be paid (Art. 7:629(1) of the Dutch Civil Code). During this period, the employee and the employer are expected to do as much as possible to reintegrate the employee with the current (or another) employer. During the reintegration process, the employee will generally first perform suitable work before resuming contracted work. Note: if the employee resumes the contracted work, and he becomes ill and unfit for work again after 28 days, the wage payment obligation of 104 weeks starts all over again. It is therefore important for employers to know the distinction between suitable and contracted employment. This blog will clarify this distinction.
The obligation to continue payment of wages
As already mentioned, the employee is entitled to continued payment of (70% of) his wages for 104 weeks. After this period, this obligation ceases and the ban on giving notice during illness also no longer applies (Art. 7:670(1) of the Dutch Civil Code). Within this time, short periods of recovery of the employee are not factored in. These are periods lasting less than four weeks (Art. 7:629 paragraph 10 of the Dutch Civil Code). However, if the recovery has lasted longer than four works and the employee falls ill again, the employer is again obliged to continue paying wages. It is irrelevant here whether there is a "new medical cause" or whether the illness has the same cause as the illness as a result of which the employee was unable to work before.
The importance of suitable/contracted work
Thus, the above only applies if the employee can again perform the contracted work (this is the originally stipulated work with working hours before the illness occurred). It is possible that the suitable work is implicitly converted into contracted work (e.g. if the employee returns to his normal work with normal working hours) or that a new contracted work is explicitly agreed between the parties (e.g. they agree that the employee will now work 32 hours a week instead of 40 hours). Especially in the case of implicit conversion from suitable to contracted work, ambiguities may exist. Then, for example, the employee believes that he is performing new contracted work, but the employer thinks quite differently. By now, it should be clear that the difference in qualification can have major consequences. When is there conversion to (new) contracted work?
The party's intention
Of primary importance is whether employee and employer had a legitimate expectation that the contracted work was changed. This is known as the Dutch "Haviltex-maatstaf", which means, in short, that what matters is that the parties intended to change the contracted work.
The time factor
The time factor means that the period during which the new work would have been performed must be of a certain length before the parties could reasonably have concluded that there was new contracted work. When there is a sufficient passage of time varies from case to case. Therefore, case law has not set a concrete minimum. Sometimes a few months is sufficient and sometimes more than 10 years of performing other work is not enough. Sometimes 3.5 years of suitable work is too little and other times 1.5 years is too little. Generally, however, one can assume that the minimum is a few months to a year.
The circumstances of the case
If the passage of time shows that there may have been a turnaround from suitable to contracted work, the circumstances of the case must then be considered. This may include what the expectations are regarding recovery for the (original) contracted work. Pay and working hours can also be an important indication here. However, a change in the number of working hours does not automatically lead to a change in the contracted work. Several factors come into play. For instance, jointly signing a form and informing the employee of the consequences may play a role. It therefore follows that the intention of the parties and the expectations created on both sides are key.
As an employer, if you are concerned that your "recovered" employee will fall ill again after four weeks, it is advisable to let him still perform suitable work. This can be done by clearly agreeing (and recording) that the employee is still in the reintegration process and (only still) performing suitable work. This creates clarity and prevents discussion about the parties' intentions in the future.
Want to know more?
Do you have questions about reintegrating employees or employment law in general? Feel free to contact one of our lawyers.