The legislative proposal to amend the reintegration obligations in the second year of illness for employees of small and medium-sized employers is part of the labour market package presented in April 2023, with measures for more security for workers and more flexibility for entrepreneurs. This proposal offers clarity to small and medium-sized employers (up to and including 100 employees) and employees on the procedure to be followed during the reintegration of an employee in the second year of illness.
In practice, small and medium-sized employers find it difficult to reintegrate employees with their own business in the second year of illness. In that case, the sick employee occupies a job that could be filled by a fully employable employee. In practice, this means that these employers are less inclined to hire employees on the basis of an employment agreement for an indefinite period of time in order to limit the risks of the obligation to continue paying wages and reintegration.
Conditions for concluding first-track reintegration
This legislative proposal adjusts the reintegration obligations of small and medium-sized employers, allowing them to focus on second-track reintegration from the start of the second year of illness only, if the conditions for closing the first track are met. This is possible if the employee agrees to this in writing, or if the UWV grants permission.
The UWV grants permission, if the employer and employee have not reached an agreement on concluding the first-track reintegration, when the following three conditions are met:
- The employee is unfit for work at the time of deciding on the application;
- The reintegration efforts of the employer and employee in the first year of illness have been sufficient;
- The employee is not expected to be able to perform his own work or his own work in adjusted form within 13 weeks.
Whether all three conditions are met will (partly) have to be proven by a statement from the company doctor to be submitted by the employer.
Small and medium-sized employers will not be relieved of their responsibilities during their employees' illness. Employers remain responsible for two years of continued payment of wages during illness and for the progress of the reintegration process. In the second year of illness, the employer also remains responsible for helping the sick employee reintegrate with the business of another employer once the first track has been completed. If a WIA-application is submitted after the second year of illness, the UWV will also assess this.
Employee who recovers in the second year of illness after conclusion of the first track
The current ban on giving notice during illness remains applicable for 104 weeks. A new notice prohibition will be included for the case where the employee fully recovers during the second year of illness (but the first track has already been successfully completed). In that case, the employer will remain responsible for continuing to pay the employee's full salary for the remaining period of employment, as long as the employee is not given the opportunity to work or has not started to work within the business another employer. For this purpose, it is regulated that the fact that the employee will not be able to work is a risk that will be borne by the employer. Any income earned by the employee with another employer during this period may be deducted from the wages paid. Upon full recovery, the employee retains the right to his own job if it has not yet been filled by an employee working on the basis of a fixed-term or indefinite employment agreement.
Termination of the employment agreement
It is proposed to create a new ground for dismissal for the situation where a small or medium-sized employer wishes to terminate the employment agreement after a completed first-track reintegration, and after the period of the notice prohibition has expired. This ground, to be included in Section 7:669 (3) (j) of the Dutch Civil Code, reads as follows:
j. terminating the promotion of employment into suitable work in the employer's company of an employee who was prevented from performing the stipulated work in connection with incapacity due to illness for 52 weeks, on the grounds of Article 658aa, provided that the period referred to in Article 670 (1) and (12) has expired and, if the employee is again able to perform the stipulated work, the stipulated work, whether or not in adjusted form, is not available in the employer's company within a period of 13 weeks.
To invoke this ground for dismissal, the employer must ask the UWV for permission. The UWV assesses whether the first-track reintegration has been successfully completed - according to the above requirements - and whether the sickness notice ban or the newly created notice ban does not apply. In doing so, the UWV assesses whether it is plausible that the employer is not expected to have a job available in the employee's own or adjusted own work within 13 weeks. For medium-sized employers, the UWV additionally tests whether redeployment possibilities are available within 13 weeks. This test does not apply to small employers. The rules that apply in this context will be further elaborated in the existing Dismissal Regulation.
This ground can be invoked by the employer both when the employee is still ill and in the situation where the employee has fully recovered. No change is envisaged to the existing ground for dismissal for long-term ilness for employees of small and medium-sized employers for whom the first track has not been completed after the first year of illness and for employees employed by large employers.
Consequences of benefits and statutory transition payment
Whether or not the employee has consented to the conclusion of the first track does not matter for the right to a statutory transition payment, unemployment benefit or sickness benefit. The employer is entitled to compensation by the UWV of the statutory transition payment paid to an employee on the basis of this new ground for dismissal. This applies to transition payments paid to all employees who are dismissed on the basis of the new ground for dismissal, regardless of whether they are (still) sick at the time of termination of the employment agreement.
Entry into force
It has been proposed that this legislative proposal will apply to persons who have their first day of illness on or after the date of entry into force, to allow employers enough time to prepare for the amended legislation. However, the date of entry into force of this legislative proposal is not yet known. From 13 October 2023 to 24 November 2023, the proposal will be submitted for internet consultation. Interested parties can respond to the proposal via internetconsultatie.nl, after which the ministry will incorporate the responses into the legislative proposal.
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Originally published 17 November 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
