Under Dutch law an employer is in principle obliged to continue paying a sick employee at least 70% of the most recent wage during the first 104 weeks of illness. Furthermore, an employer should use its best endeavours to reintegrate a sick employee. The employee is obliged to cooperate in this reintegration, unless this cannot reasonably be required. If the employee refuses to cooperate, the employer has several options to enforce a reintegration, such as suspending or stopping wage payments.
If an employer does not fulfill its reintegration obligations, the Employee Insurance Agency (the UWV) can impose a wage penalty on the employer, as a consequence of which the UWV can extend the period of 104 weeks, during which the employer has to continue to pay (at least 70% of) the wage to the sick employee, up to a maximum of another 52 weeks.
In a recent case before the Central Appeals Tribunal (CRvB), the CRvB had to determine whether the UWV had rightfully imposed a wage penalty on the employer. At first instance the Court had decided in the employer's favour, because (among other things) the employee had opposed her reintegration with another employer.
However, the CRvB judged that the employer had not made sufficient reintegration efforts. The CRvB referred to reports by an expert who advised that the employer should have started the process to reintegrate the employee with another employer a few months earlier.
According to the CRvB, the fact that the employee herself had not cooperated in her reintegration with another employer did not make a difference. The CRvB considered that the employer's decision not to take any disciplinary action to force the employee to cooperate was at the employer's own risk. The CRvB therefore determined in favour of the UWV that the UWV had rightfully imposed the wage penalty on the employer.
The judgment of the CRvB illustrates that if a sick employee refuses to cooperate in his or her re-integration, the employer should hold the employee to account and, under certain circumstances, even stop or suspend the wage payments, in order to avoid the risk of a wage penalty being imposed by the UWV.