Many of your employees will probably be going on holiday this summer. While they are enjoying some rest and relaxation, you as an employer might have to deal with a number of issues during the holiday period. Are you, for example, allowed to go into your employee’s mailbox if he or she is on holiday and what can you do if an employee goes on holiday without permission? In the weeks ahead, we shall be providing you with an answer to this and other holiday-related questions arising from employment law.

Question 5 - My employee falls ill while on holiday abroad. What happens now?

As an employer you may draw up monitoring rules that the employee is required to follow if he falls ill abroad. If an employee does not follow these rules, the employer may suspend payment of wages until the employee does comply with these rules.

During a period of illness, in principle an employee is entitled to wages. However, the employer has the right to suspend wages if he does not have the opportunity to check whether the employee is actually entitled to wages (Article 7:629 (6) of the Dutch Civil Code (hereinafter ‘DCC’). In that context, the employee is obliged to follow the instructions for monitoring sickness absence, provided these (1) have been given in writing and (2) are reasonable. Please note, however, that if the employee then complies with the aforementioned instructions after all, he will still be entitled to wages for the period that these were suspended. Suspension is therefore not the same as stopping wages.

In view of the above, the employer is advised to adopt rules regarding instructions for monitoring sickness absence (sickness absence rules, or verzuimreglement). These rules may lay down, for example, that an employee who falls ill abroad must submit a medical statement from a foreign doctor. The employee may submit the medical statement only to the company doctor or working conditions service. This is because the monitoring of ill employees is exclusively reserved for the working conditions service or company doctor. The employer may therefore not carry out checks himself or read the medical statement.

Finally, under Articles 27 (1)(d) of the Works Councils Act (Wet op de ondernemingsraden), sickness absence rules must be submitted to the works councils for their approval.

Question 6 - Can sick days be set off against days’ holiday?

It is possible to arrange in a written agreement that an employee must surrender days’ holiday exceeding the statutory minimum if the employee cannot work due to illness. If no such agreement is in place, it is only possible to set off sick days against days’ holiday if the employee agrees as the situation arises.

The general rule is that sick days may only be set off against days’ holiday if the employee agrees ‘as the situation arises’ (i.e. at the moment that the employee falls ill or afterwards). This agreement can be given orally as well as in writing. In addition, in principle only the days’ holiday exceeding the statutory minimum in the year concerned as well as in previous years may be set off (Article 7:637 (1) DCC). In the case of a full-time employment contract the minimum number of days’ holiday is 20: only the days’ holiday that the employer has awarded over and above this minimum may therefore be set off against sick days.

In derogation from this general rule, it is possible to agree in advance in the employment contract, staff manual or collective bargaining agreement(CBA) that an employee must surrender days’ holiday if he is unable to work through illness (Article 7:637 (2) DCC). It will therefore not be necessary in that case for the employee to request consent each time he falls ill. However, only the days exceeding the statutory minimum in the year concerned may be set off. It therefore cannot be arranged in a written agreement that days’ holiday from previous years may also be set off.

In the situation where the employee takes days’ holiday during illness (for example, where a reintegrating employee wants to go on holiday), these sick days may also only be regarded as days’ holiday if the employee agrees ‘as the situation arises’ (Article 7:638 (8) DCC). The condition that this is only possible for days’ holiday exceeding the statutory minimum (as laid down in Article 7:637 (1) DCC) does not apply in this situation. Furthermore, it is also possible in this situation to agree in advance in the employment agreement, staff manual or CBA that sick days may be regarded as days’ holiday during a predetermined holiday, provided that it only concerns the number of days’ holiday exceeding the statutory minimum that have been agreed for the year concerned.