Scope of continued wage payment

It is obligatory for an employer for the first and second years of an employee’s sick leave to continue paying that employee’s wages, at a rate which is statutorily provided for. The employer for the duration of the first year is under the obligation to pay out at least 70% of the employee’s wages to a minimum of the statutory minimum wage. The “minimum wage” requirement lapses on expiry of the first year of sick leave whereas the 70% requirement is upheld throughout the second year of sick leave. It may have been agreed in the context of a Collective Labour Agreement that the employer should pay out more than the statutory minimum wage. Any employer who fails to live up to the obligation to help achieve the employee’s return to work without delay risks having the continued wage payment obligation extended.

Level of pay in “compulsory continued wage payment” scenario

An employer’s failure to comply with its reintegration obligation vis-à-vis an occupationally disabled employee prompted UWV, the Employee Insurance Agency in the Netherlands, to extend the term of continued wage payment to include the employee’s third year of sick leave. The employer’s failure to meet the terms of the ruling in question prompted the employee, whose CLA entitled him to 90% wage payments throughout the second year of sick leave, to file a petition for preliminary relief with the Sub District Court, which ordered the employer to continue making wage payments in the amount of 90% of the employee’s wages and factor in the CLA-agreed increments as at the first of July 2016 and the first of January 2017. The employer on appeal denied being under the obligation to continue paying the employee at the rate of 90% of the latter’s wages. The Court of Appeal found for the employer and reduced the latter’s continued wage payment obligation to 70% of the relevant employee’s wages, which level, it argued, had served as the basis for the statutory regime providing for continued wage payment in the event of sick leave and would in its estimation be upheld if the case were pursued for adjudication on its merits.

Dutch version: Omvang loondoorbetalingsverplichting

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