Wage suspension or wage freeze during illness? Get it right

A sick employee who does not cooperate in his reintegration: what can you do as an employer? Continuing to pay wages while nothing happens does not feel fair, but simply stopping payment is not without risk either. In this article you will learn how to properly use wage suspension or wage cessation – two powerful tools that are often misused.

What are the reintegration obligations?

In case of illness, an employee is entitled to (partial) wage payment up to 104 weeks. During this period, both employer and employee must make efforts to return to work. Ideally to the own function, but if that is not feasible, to suitable work. This is called the reintegration obligation.

Specifically, this means:

– Regular consultation between employer and employee;

– Contact with the company doctor;

– A plan of action that remains current.

Wage suspension or wage freeze?

Is the employee not cooperating? Then you should not wait, if you as an employer do not make enough efforts, the UWV may decide that you have to continue paying the employee wages for more than 104 weeks. The law offers two ways to exert pressure:

1. Wage suspension: temporarily withholding wages. As soon as the employee returns to compliance, he will still receive wages retroactively.
2. Wage freeze: permanently forfeit wages for the period of non-cooperation, even if the employee later picks it up again.

Both sanctions are effective but have their own scope. Proper distinction is crucial.

Wage suspension: no clarity on sickness

You may suspend wages if your employee fails to comply with the monitoring requirements. These include not being available, not showing up for consultation or not providing information about the nature of the illness, which makes it impossible for the employer to assess whether there is illness and whether the employee is entitled to wages.

Important:

– Prescriptions must be in writing.

– Once the employee returns to cooperation, you must still pay the suspended wages.

Wage freeze: if cooperation fails

Is the illness clear, but does the employee not cooperate in reintegration? Then a wage freeze may be justified. The law lists six situations in which this is allowed. Below are the most common:

1. Intentionally getting sick

Only if the employee was intentionally out sick can the wages be cancelled. That sounds crazy, but consider an injury from a high-risk sport. That doesn’t count as intentional. For illness due to recovery time after a cosmetic procedure, one looks at medical necessity. A breast reduction on doctor’s advice, for example, does count as legitimate.

2. Refusal of suitable work

What is ‘suitable’ is determined by the company doctor. The employee may disagree and request an expert opinion from the UWV, but in the meantime he must abide by the opinion of the company doctor.

3. Ignoring reasonable instructions

If the employee refuses reasonable instructions – for example, participation in mediation on the advice of the company doctor – you may stop pay. But: the measure must be real. Forcing an internal mediator when external advice has been given? That won’t hold up. If a psychologist indicates that the employee is not yet fit for work, then this must also be respected.

Please note: mediation that is only aimed at termination of the employment contract does not count as a reintegration tool.

4. Not cooperating with the plan of approach

Employees are obliged to cooperate in the preparation and adjustment of the action plan. Give the employee room for input, have documents translated if necessary and provide a clear explanation before signing. The employee must be given time to do this.

Common mistakes

Wage suspension and wage freeze are frequently confused. Are you communicating a suspension but implementing a wage freeze? Then you are responsible for the mistake. So always ensure clear, written communication.

Warning is mandatory

Before applying a wage suspension, you must inform and warn the employee. Clearly state in good time what the regulations are and what the consequences are if the employee does not comply, and give the employee time to cooperate. Only then may you actually enforce the sanction.

Conclusion: approach in steps

Want to deploy wage penalties? Then follow this route:

1. Are there alternatives to encourage the employee?
2. Get advice on which sanction is appropriate;
3. Inform and warn the employee;
4. Give a reasonable recovery period;
5. Announce the action and then apply the action.
6. Revoke the measure once the employee returns to compliance.

Sometimes immediate sanction is possible – for repeated behavior and previous warnings. But even then, clarity beforehand is crucial.

Questions or doubts?

Every situation is different. Do you doubt whether a sanction is appropriate or do you need advice during a difficult reintegration? Please feel free to contact us  by  email, phone or fill out the contact form for a no-obligation initial consultation. . Our lawyers will be happy to think along with you.