
13 Feb Writing off taken vacation days sick employee
What happens if an employee’s holiday has already been determined, the employee subsequently becomes ill and – with the permission of the company doctor – still enjoys his holiday? Can the employer write off these vacation days or not? At the end of 2023, the Supreme Court provided a judgement on this matter and we briefly explain this judgement in this article.
Main rule and exception
If an employee has taken vacation and becomes ill before or during his fixed vacation, the main rule of the law is that the day or parts of the day on which the employee is sick during his vacation are not regarded as vacation days. In other words: the employee retains the right to these holidays so that he can still use them at a later time. However, there is an exception to this, namely unless the employee agrees that his sick days are considered vacation days. In that case, the vacation days will still be written off – despite illness.
The present judgment of the Supreme Court teaches us that an employer may not accept this exception or consent of the employee too easily. This is because an employee must “expressly and specifically” agree to the write-off of his vacation days. If we translate this to the question at hand, then the situation in which an employee who has fallen ill – whose holiday had already been determined – still wishes to go on holiday is insufficient for the acceptance of the exception/consent and thus the ability to write off the holidays. In short: in that case, the employee’s explicit consent is required in order for the employer to be able to write off the holidays lawfully.
Written agreement
Finally, in the case of extra statutory holidays, it may be agreed in writing (in contrast to statutory holidays) that sick days – insofar as they are holidays in excess of the statutory holiday entitlement – will nevertheless be regarded as holidays. According to the Supreme Court, a written agreement is also understood to mean a collective labour agreement.
If you have any questions about this subject and/or if you are unsure whether you can write off sick days as holidays, please contact Puck Keurentjes (+31-6–128 603 80) or one of our other employment law specialists.