In the event of long-term incapacity for work, reintegration obligations apply to both the employer and the employee. They must jointly ensure that the sick employee is able to return to work as soon as possible. The employer is required, for instance, to engage an occupational health and safety physician or a company doctor after one week’s sickness. The employer must furthermore actively offer the sick employee suitable work. Briefly stated, the incapacitated employee must cooperate in his or her reintegration. This means that a sick employee must comply with reasonable proposals of the employer and instructions of the company doctor, and must cooperate with measures that allow the employee to perform his or her own or adapted work. A sick employee must also cooperate in drawing up and adjusting an action plan. Failure of the incapacitated employee to comply with these reintegration obligations may be grounds for applying a salary penalty. This article takes a closer look at the reintegration obligations of an incapacitated employee on the basis of two recent judgments.

Cooperation in the transfer of medical records

In the first case, a long-term incapacitated employee was requested by his employer to sign a written power of attorney for the transfer of his medical file to the new health and safety physician. The employee took the position that he first wanted to meet that new physician and discuss the power of attorney with him. The employer applied a salary penalty. In the subsequent action to recover back wages, the court addressed the employer’s defence that the request to sign a medical power of attorney and to allow the transfer of the medical file constituted a reasonable requirement within the meaning of Article 7:629(3) of the Dutch Civil Code (grounds for exclusion from the obligation to continue to pay salary during illness).

The court found that, by making the request, the employer was fulfilling its duty of care and that, in general, an employee may be expected to allow the occupational health and safety physician to do his work. In the court’s opinion, it is not illogical that, for privacy reasons, permission is required to transfer the medical file, which also follows from the guidelines that apply to the medical profession. The court furthermore ruled that it is in the interest of sound case management that the occupational health and safety physician review the medical file before the consultation takes place. That interest and the employer’s interest in the progress of the reintegration outweigh the right to privacy of the employee, who first wanted to consult with the new health and safety physician before giving permission for the transfer of his file. The court therefore found that the request to sign the medical power of attorney was a reasonable proposal within the meaning of Article 7:629(3) of the Dutch Civil Code and that the salary penalty was therefore justified.

Obligation to provide complete and truthful health information

The second judgment related to summary dismissal. The urgent reason given was that during her illness the employee in question organised commercial bingo sessions via Facebook, even though she had informed both her employer and the company doctor that she was unable to perform any work and spent the entire day on the sofa, dazed by her medication. The employer accused the employee of having misled the company doctor regarding her work capacity and of having wrongly refused to attend a scheduled interview with the employer (on the grounds of her alleged limitations). The employer was able to prove this by means of videos that it had secured from the Facebook page set up by the employee for the bingo sessions.

The court found that the impression made by the employee in the videos by no means corresponded with the description of her condition that she had given her employer and the company doctor. The court’s impression of the employee was one of concentration, speed, focus and accuracy, rather than the dazedness alleged by the employee. The court deemed it proven that the employee had deliberately painted a much less rosy picture to her employer and company doctor regarding her work capacity. In the court’s opinion, that constituted a valid ground for dismissal, particularly because the employee, as a result of the corona crisis, had spoken to the company doctor and the employer almost exclusively by telephone. The court found that this imposed an additional obligation on the employee to communicate her health status as fully and truthfully as possible.

Although, strictly speaking, employees cannot be obligated to sign a medical power of attorney, it is obvious from the first ruling that a refusal may result in the employee losing his or her right to salary. The second ruling again confirms that an employee must provide the company doctor with honest and complete information about his or her health status and work capacity. That has of course always been the case, but sick employees are under an even stricter obligation when the consultations take place by telephone.

Please contact Lise van den Heuvel (+31-6-23492248) for more information or advice on this subject.

This article was published in the Newsletter Vestius of October 2021

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