The Netherlands: Fixed Business Closure? Keep an Eye on Your Sick Employees' Vacation Days

The holiday period is nearly upon us again. Lots of businesses, even those in the hospitality industry, close for a few days or weeks a year. During a business closure like this in the Netherlands, employees are usually expected to take vacation days. This is allowed, provided arrangements about such leave have been made in the individual employment contract or the collective labor agreement (CLA). The Hospitality CLA stipulates that an employer has the right to designate certain periods as business vacations, during which the business or a department will be closed. The employer must determine in advance when this period will be to allow employees to take these days off. Note that an employer’s right to make this designation applies only to days in excess of the statutory entitlement. So far, so good. But what if employees are sick during the business closure?

Vacation and Illness: What Is the Deal?

In principle, an employee may also take a vacation during illness, but that does not necessarily mean that the employer can write them off as vacation days. If a sick employee wants to take vacation days, the employer may deduct them from the balance only if the employee consents. Consent may be given in two ways: (a) as and when needed, that is, when the employee is actually sick and wants to take a vacation, or (b) in advance, for instance in the employment contract. Option (b), an advance arrangement, may only be agreed in respect of days that are in excess of the statutory entitlement.

Illness During Business Closure

But what happens if an employee is sick during a fixed business closure? Is the employer then able to "just write off" those vacation days? Not necessarily, the court held in January of this year. The basic rule is that days on which an employee is sick cannot be regarded as vacation days. 

This means that if a restaurant closes for a week or two around the holiday period and all employees "lose" vacation days as a result, this does not necessarily include sick employees. For them, these vacation days remain on their balance—unless those employees have consented to the deduction of those days from their balance. This means not only that these employees may be hoarding vacation days, but also that these employees are, in principle, entitled to payment of these days at the end of their employment.

Practical Tips

To deal with this in a practical way, employers have two options. They may ask sick employees to consent to the write-off of vacation days just before the business closure, or agree in advance in the employment contract that sick days during business closures will be regarded as vacation days. Be aware that an advance arrangement like this is valid only for days in excess of the statutory entitlement.