The Gatekeeper Improvement Act in practice: The complexity of the reintegration chain (part 1)
As an employment lawyer, I assist both employers and employees on a daily basis. What strikes me more and more often? Conflicts surrounding reintegration in cases of long-term incapacity for work. I am often only called in when the situation has already escalated and mutual understanding is hard to find. At that point, a solution seems only possible through legal channels. In this first part of a two-part series, I will discuss the many different players in the chain and zoom in on an aspect of reintegration that rarely receives attention, but which I believe is crucial to preventing escalation.
“… What I see is that all parties want to promote a return to work. Yet almost no one is really helping the employee…” Employment lawyer Judy Sliepen
The complexity of the reintegration chain
The reintegration process under the Gatekeeper Improvement Act has many links. So many, in fact, that it is often unclear to both employers and employees who is actually in charge. It is also unclear what information is shared with whom. The result? Confusion, delays, misunderstandings and incomprehension. It is difficult to maintain an overview, especially for employers who have little experience with long-term absenteeism or who are only involved in part of the process. I see another problem in particular, which is that the reintegration chain focuses primarily on reporting and not at all on recovery. That is why I am listing the most important players in the reintegration chain and providing tips on how employers can maintain control of the process.
The employer
It would seem logical that the employer takes the lead. However, this is not the case. In small companies, the director is often also the manager and HR manager in one, with short lines of communication. In larger organisations, an employee has to deal with several points of contact: the immediate manager, the department manager, an HR assistant and the HR manager. That’s two to four people, who are not always all aware of the personal situation. And if there is a conflict with one of them, it becomes even more complicated. Therefore, be clear to the employee about who their point of contact is. And if necessary, appoint someone with whom the employee does feel safe. This will prevent unnecessary confusion.
The occupational health and safety service
The occupational health and safety service is a mandatory external party specialising in absenteeism support. They support employers in their legal obligations, provide access to a company doctor, coordinate the absenteeism process and monitor deadlines. Every employer must have a basic contract with an occupational health and safety service. The occupational health and safety service contacts the employee and schedules appointments with the company doctor.
The company doctor
The company doctor is the linchpin of the process. He assesses whether the employee is fit for work or not. The employee tells him his personal story, complaints and experiences. The doctor listens, asks questions and then draws up a problem analysis with advice on the employee’s capabilities and limitations. Sometimes there is interim contact with an assistant company doctor, but only the company doctor is allowed to make an official problem analysis. Both the employee and the employer must log in to a digital portal to view appointments and documents.
This problem analysis is at the heart of the reintegration process. The company doctor’s advice is leading, but there is a recurring problem: the doctor is not allowed to share medical information with the employer and the problem analysis often gets stuck in a standard sentence such as: ‘Employee experiences limitations, no usable possibilities at present, but in the future. Employer and employee must remain in dialogue, possibly with a third party.’ Such vague wording does not do justice to the extensive discussion the employee had with the doctor. The employee feels they are not being heard, the employer only receives a brief summary and is left in the dark. Who should continue the discussion? The manager, HR manager, or someone else? And what if there is a conflict with one of these people? Can the employer appoint someone and must the employee accept this?
My tip: ask the company doctor for specific recommendations in advance. Who should be present at the discussions, when and how often? Is intervention necessary? This will prevent misunderstandings and ensure that everyone interprets the advice in the same way.
The absenteeism insurer
If the employer is insured against the financial risk of continued payment of wages in the event of illness, the absenteeism insurer must be informed immediately. The insurer has its own requirements: active reintegration in accordance with the Gatekeeper Improvement Act, timely and correct notifications, file creation and, in some cases, mandatory interventions. The policy conditions may state that certain interventions are mandatory in the event of long-term absence, such as engaging an occupational expert, reintegration agency, psychological counselling (often at the employer’s expense) or a medical specialist.
The case manager
The case manager – for many employees, it is unclear on whose behalf this person speaks. This could be someone from the employer, the occupational health and safety service or the insurer. The case manager maintains contact with the employee and employer, coordinates the process and has access to the company doctor’s documents. Ideally, the case manager acts as a director and point of contact between all parties.
The occupational expert
The occupational expert works for the occupational health and safety service, the UWV or as a self-employed person. Often, they are only called in after a year of incapacity for work. The occupational expert assesses the possibilities for returning to work, analyses the employee’s job and workload capacity, and advises on suitable work within or outside the company. This is also important for any WIA application.
The mediator
If incapacity for work is the result of a labour dispute, or if a dispute is hindering recovery, mediation can be used. The employer then approaches a mediator, who contacts the employee and schedules an intake interview, followed by a meeting with all parties involved. Sometimes the employee has to contact the mediator themselves. The mediator has a duty of confidentiality and does not share confidential information with the employer. That is good, but it can also cause confusion. Suppose the employee wants to reschedule an appointment for personal reasons and the mediator does not report this to the employer, then it may appear as if the employee is unwilling to cooperate, which can exacerbate the conflict.
The employee’s perspective
Sick employees suddenly receive invitations for (online) appointments, questionnaires and evaluations from all sides and often have no idea who sent them. It is often difficult for sick employees to keep track of everything. They have to talk to their manager, HR, case manager, occupational health and safety service, company doctor, intervention providers and often their own care providers as well. Who is in charge? Sometimes employees think that information is automatically shared with the employer, but this is not the case. So they keep repeating themselves. They have to keep track of their emails because no appointment can be missed and they receive login codes and passwords for the various portals. Appointments can only be rescheduled via the employer. This causes pressure and stress for employees.
The employer’s perspective
It is just as complicated for employers. They depend on the information that is shared with them. What is not shared is unknown and the employer cannot take it into account. The company doctor’s problem analysis is leading, but often brief. What if an employee does not want to talk or says they are unable to do something? The insurer insists on action and the employer does not want to risk a wage penalty from the UWV. And what if the department has since been reorganised and the employee can no longer return? Mediation is often recommended, but if it is used too late, it becomes a compulsory exercise and the trust needed to truly repair the relationship is lacking.
My observations
What I see: all parties want to promote a return to work. The employer wants to quickly get value for the salary again, the insurer wants to pay out as little as possible, and the government wants to save costs. But above all, the employee wants to get better as quickly as possible and return to work. Yet almost no one really helps the employee, no matter how well-intentioned they may be. The only person who focuses on the employee’s recovery is often their own (medical) practitioner. The rest are mainly concerned with monitoring, evaluating, lists and reports. In the best case scenario, there is someone in the chain who really listens to the employee, but usually appointments are a compulsory formality and the employee has to repeat their story over and over again.
‘…An employee benefits from having a single point of contact: someone who keeps track of everything and coordinates appointments…’ Employment lawyer Judy Sliepen
Some employees have told me that they are even considering resigning and giving up their wage entitlement in order to be freed from all reintegration obligations. They want peace and quiet and to work on their recovery in their own environment without pressure from their employer. I find this distressing and it cannot have been the intention of the legislator.
I am convinced that an employee benefits from having a single point of contact: a well-trained, qualified person who keeps track of everything and coordinates appointments. No confusion, no silos, no unnecessary obligations to repeat the story at every counter. (I am not considering abuse of sick leave here.)
