Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Restrictive COVID-19 measures are affecting the evaluation of employers’ rehabilitation efforts. Under Dutch law, an employer is obligated to continue paying the salary of an employee who is on leave because of an illness for the first two years of the illness. During this two-year period, the employer cannot dismiss the employee unless there are reasons that have nothing to do with the employee’s illness, such as fraudulent behavior, theft, closure of the company, etc. During this time, the employer must undertake all reasonable efforts to ensure that the employee returns to work. The primary goal is to have the employee return to the same job, with accommodations if needed. If that is not possible, the employer should strive to have the employee return to another suitable position within the company. These actions are within the so-called “first track” (in Dutch: eerste spoor) of the rehabilitation process. If that is not possible, the employer should seek an alternative suitable position outside of the company. These actions are within the so-called “second track” (in Dutch: tweede spoor).
After two years of illness, the employee can apply for sickness benefits with the Employee Insurance Agency (UWV). The UWV will check whether or not the employer has complied with its rehabilitation efforts. If not, the UWV can rule that the employer should continue to pay the employee’s salary for another year. The UWV is aware that – because of COVID-19 – it is not always possible to do enough in the rehabilitation process. That said, it is not an excuse for employers to stop their rehabilitation efforts during the COVID-19 pandemic. The recent addendum to the UWV’s Werkwijzer Poortwachter (Permanent Incapacity Benefit Guidelines), entitled Poortwachter COVID-19, outlines what is expected of employers.
Continued payment of wages
If an employer fails to meet its rehabilitation obligations without a proper basis, the UWV will extend the employer’s obligation to continue to pay wages up to a maximum of one year when assessing applications for incapacity benefits after two years of illness. The basic principle here is that the assessment of the rehabilitation report should be fair.
The UWV’s Werkwijzer Poortwachter is the basis for assessing applications for incapacity benefits. The UWV takes COVID-19 measures into account when assessing the rehabilitation report and whether or not enough is being done to promote rehabilitation. This requires a customised approach: employers must describe in concrete terms how COVID-19 has affected their companies and how this has consequently affected the rehabilitation process.
The process supervisor and team support officer then assess whether the rehabilitation report is complete. They decide whether it is acceptable that documents are missing or incomplete because of COVID-19. It is up to the employer to provide convincing arguments as to why certain rehabilitation activities have not been carried out.
We advise employers to consult their insurer’s medical adviser and/or occupational health and safety doctor and to give all those involved written confirmation of their opinions on whether or not rehabilitation during the COVID-19 pandemic is possible. These opinions should be included in the rehabilitation report.
From the Poortwachter COVID-19 addendum it is clear that the following situations may constitute a proper basis:
- if the employer can argue convincingly in the rehabilitation report why and during which period the rehabilitation came to a halt;
- mandatory company closure due to Covid-19. This is pertinent if a current or ex-employee is in the process of rehabilitating to resume their own or alternative work. If reassignment is possible once the company reopens, the UWV expects the employer to reassign the employee irrevocably;
- not being able to implement second-track rehabilitation (or parts of it) because of Covid-19;
- not being able to perform suitable work for physical reasons, for instance, due to fewer job opportunities at the employer.
The following situations do not constitute a proper basis:
- insufficient research into first-track rehabilitation: this can be done “as usual.” If a specific workplace survey is required for this, the employer or occupational consultant concerned can look for other ways to carry out the investigation;
- second-track rehabilitation can continue as much as possible. It is also possible for rehabilitation agencies to provide their services remotely. If this is not possible in certain situations, this will be taken into account;
- impending lack of funds due to COVID-19 is not a proper basis for failing to do enough to ensure rehabilitation, nor is it an excuse to extend the period that the employer is liable to pay wages. If the employer is unable to meet its payment obligations, this does not mean that the UWV will automatically regard its rehabilitation efforts as “adequate.”
Once the COVID-19 era has ended, the UWV will take into account the period during which rehabilitation options were limited. It is important that the employer can argue convincingly in the rehabilitation report why and during which period the rehabilitation came to a halt.
It is still possible to request experts’ opinions during the COVID-19 crisis. The UWV will be attending to these requests remotely and based on documents as much as possible. That said, if it is impossible to form an opinion based on the substance of the case, for example because a physical consultation with the insurance doctor is necessary, the employer will not be held to account for not requesting an expert's opinion when rehabilitation reports are assessed. But the employer will be expected to carry on looking for other creative solutions. Doing nothing about rehabilitation is not an option in any event.