On Friday, October 13, 2023, the Bill to amend the Reintegration Obligation in the Second Year of Illness for Employees of Small and Medium-sized Employers (in Dutch: “Wetsvoorstel tot wijziging van de re-integratieverplichting in het tweede ziektejaar bij werknemers van kleine en middelgrote werkgevers”) was opened for consultation.
The purpose of the Bill is to give small and medium-sized employers more flexibility and clarity. This is achieved by giving small and medium-sized employers the option to focus exclusively on second-track reintegration with another employer from the second year of illness and to proceed to sustainable replacement.
The proposed effective date of this Bill is not yet clear. The online consultation will remain open until November 24, 2023, and any adjustments to the proposal can be made thereafter.
Current reintegration obligation
When an employee becomes sick, the employer is obliged to continue paying at least 70% of salary for 104 weeks. During this period, the employer is expected to do what is reasonably possible to reintegrate the employee into suitable work. The focus here is to have the employee return to his own position with the employer (first track). In addition, the employer (usually from the second year of illness) can also focus on reintegration with another employer (second track). Both tracks should run in parallel. If the employer tries to reintegrate the employee in the second track this does not relieve the employer of the obligation to return within the own organization.
After two years of illness, the employer can submit a request for dismissal to the Employee Insurance Administration Agency (in Dutch: UWV). This will assess, among other things, whether the employer has fulfilled its reintegration obligations. If the UWV is of the opinion that the employer has not made sufficient efforts, the UWV can impose a wage penalty. This prolongs the duration during which salary payments must be sustained and the restriction on employee terminations remains in effect.
If the employee recovers before two years of illness, he is entitled to return to his own position. This gives small and medium-sized employers a lot of uncertainty because they cannot hire a permanent replacement at this position during the period of illness. After all, the job must be available again when the sick employee recovers.
What will change?
The proposed Bill provides that small and medium-sized employers will be allowed, from the beginning of the second year of illness (no earlier and no later), to focus exclusively on reintegration in the second track (external). This requires that the employer has met the conditions for closing the first year. In addition, the employee must agree to this (in writing). This consent must be given no later than the end of the first year of illness. Here the parties can make joint agreements. In the absence of consent, the employer must request permission from the UWV no later than in the 42nd week of illness.
Consequences
If adopted, the bill has the consequence that the employer no longer needs to keep the employee’s job available from the second year of illness. The employer may subsequently hire a replacement in the position of the sick employee. If the employer has hired a replacement for the sick employee during the second year of illness and the sick employee recovers, the employer does not have to offer that job again to the recovered employee.
However, the employer is required to continue paying the wages of this employee up to and including the 104th week from the first day of illness. The employer must also continue to make efforts to redeploy the employee to another employer through the 104th week. If after 104th weeks the employee is not back at work, the employer can apply to the UWV for a dismissal permit. For this purpose, a new reasonable ground for dismissal is introduced within the dismissal system, to which small and medium-sized employers can appeal in case of completed reintegration in the first track, the j-ground. Here, as with the other grounds for dismissal, the employer must be able to demonstrate that there are no possibilities for reassignment.
Finally, the Bill also means that the employer no longer needs to have the employee reintegrated into the employer’s organization. However, both the employer and the employee must continue to make efforts to reintegrate the employee with another employer during the second year.