At the request of the Rozon association, Kop Lawyers recently gave a presentation to approximately 40 law students, all working at a law firm. Rozon is the umbrella association of legal advice centers in the South-East Netherlands region, which offers legal advice centers the opportunity to broaden the knowledge of their employees.
The presentation concerned the topics of illness and reintegration. Following the presentation given by Maida and Roel, this newsletter will address the (preliminary) question of who actually determines whether an employee is ill. In this context, an example in the form of a recent statement will be discussed.
he presentation concerned the topics of illness and reintegration. Following the presentation given by Maida and Roel, this newsletter will address the (preliminary) question of who actually determines whether an employee is ill.
Reporting illness
An employee must inform his employer if he is unable to work due to illness or disability. An employer cannot refuse a sick report. Sick reporting is done unilaterally. The employer determines how and when this notification must be made.
Sick or not?
If the disease goes beyond the flu, a company doctor will often be called in. It is the company doctor who initially determines whether an employee is unfit for work due to illness.
If the employee or employer does not agree with the company doctor’s assessment, a second opinion can be requested from the UWV. Please note: there are costs involved.
Since July 1st, 2017, the employee is also entitled to a second opinion from another company doctor at the expense of the employer.
If the parties disagree on the question of whether the employee is indeed ill and/or whether he is sufficiently cooperating with the reintegration obligation and the employer ceases to pay wages, the employee must in principle even request an expert opinion (second opinion) before he or she a wage claim procedure can begin. He must then submit this expert opinion during the procedure. If the employee does not comply with this, his claim will be declared inadmissible. The case will then not be dealt with substantively.
However, an expert opinion is not binding; not for the parties and not for the judge. The judge often follows the expert opinion, but can also appoint another expert (third opinion). The final judgment as to whether there is illness is reserved for the judge.
