Employers are generally insufficiently aware of their obligations regarding sick employees. In particular, their efforts to achieve so-called second-track reintegration [re-integratie tweede spoor] are often somewhat lacking. This can have financial consequences.
Inadequate second-track reintegration? Salary penalty
A sick employee should first of all be reintegrated into the company he/she was already working for. This is known as first-track integration [re-integratie eerste spoor]. In case of second-track reintegration, a sick employee is offered suitable work with another employer. An employee should beoffered second-track reintegration if he/she cannot (or can no longer) be given a position in the original company. It is this external reintegration obligation which is often forgotten until it is too late. If the UWV (Employee Insurance Agency) decides that an employer has made insufficient effort to reintegrate a sick employee, it will impose a so-called salary penalty [loonsanctie] on that employer. In that event the employer must continue paying its sick employee’s salary for up to 52 weeks.
Insufficient efforts to achieve second-track reintegration
The Central Appeals Tribunal [Centrale Raad van Beroep] recently held that an employer should have taken earlier and greater action (both internally and externally) to reintegrate an employee, despite the fact that the employee himself was insufficiently cooperative. The employer should have urged the employee to cooperate, for example by suspending or stopping salary payments.
In another recent decision, the Central Appeals Tribunal held that the employer attributably defaulted on its obligations to achieve second-track integration. In this case it was already established during the employee’s first year of illness that he would no longer be capable of performing his own work. The employer could therefore have been expected to start making efforts to achieve second-track integration towards the end of the first year of illness. After all, the only permissible reason for ignoring second-track reintegration is if the employee has specific prospects for going back to work for his/her own employer.
In both cases the employer’s negligence led to the imposition of a salary penalty.
When must the employer commence second-track reintegration?
Second track reintegration must be commenced:
- when it becomes apparent that first-track reintegration of the employee is simply not possible;
- when the work present in the company is not suited to the activities the employee is still able to perform, or
- when suitable work present in the company is not on a long-term basis.
A good time to ascertain whether first-track reintegration provides a remedy is the obligatory evaluation conducted between the employer and employee at the end of the first year of illness. If there are no concrete prospects for first-track reintegration, then very soon after that the employer must commence efforts to bring about second-track reintegration. NB: an employer must do so even earlier (preferably within six weeks) if the company doctor or an employment expert recommends this course of action.
Employment conflict? Start second-track reintegration even sooner
If there is a serious employment conflict between an employer and an employee, this provides grounds for beginning second-track reintegration even sooner. Proper guidance and, if necessary, mediation are recommended.
Practical tips: careful monitoring
As an employer you must never forget that you are responsible for the reintegration process, i.e. for the conduct of both your employee and any experts you engage, such as a medical examiner [Arbo-arts] or a reintegration agency. So we advice to carefully monitor the reintegration process at all times.
For example, if a doctor/employment expert takes the position that reintegration would not be useful or that your employee isn’t able to do anything at all, then you should take a critical stance and ask for substantiation on medical grounds. Is your employee not cooperating with his/her second- track reintegration? In such a situation you would be expected to urge your employee to make an effort by withholding his/her salary or dismissing him/her (or threatening to do so).
Nothing ventured, (nearly) nothing gained
Finally, even if there is only a small chance that a sick employee will find suitable employment, e.g. because of a serious handicap or limited work experience, you must still make efforts on his/her behalf. The obligation regarding reintegration is a best-efforts obligation rather than an obligation to achieve results. Actually achieving reintegration is not a pre-requisite.
If you have any doubts concerning first-track reintegration, then second-track reintegration is always to be recommended. After all: nothing ventured, nothing gained.