May an Employer Require a Sick Employee to Keep in Touch with Him?

When a sick employee refused to show-up at work in order to keep in touch with colleagues and with the employer, the employer wrongly discontinued the wage payment. The Sub-district Court criticised the employer for having ignored the occupational physician’s advice.
In April 2021, an employee had fallen ill for his work as a driver for the transport of refrigerated and frozen products. The occupational physician had confirmed that the employee was sick and not capacitated to perform his work.
In October 2021, the occupational physician concluded that there was a disturbed employment relationship and he recommended mediation. Two days later, the employer wrote a message to the employee, saying that he intended to withhold the wages, because the employee wrongfully avoided contact with the employer and because he refused to perform alternative work.
Subsequently, the occupational physician recommended, however, that participation in the mediation would not be possible for the employee. When the employer then announced that he held fast to his position that the employee should continue to keep in contact with his colleagues and with the employer, the occupational physician advised to postpone the mediation and to minimise the contact with the employee.
In following recommendations, the occupational physician successively recommended to await the recovery of the employee and the effect of the treatment, to call in an occupational expert. And finally he declared that the employee could not return to his old job, that the employment relationship had been seriously disturbed and that direct contact with the employee should be avoided. Then, the employer discontinued payment of the wages.
When, subsequently, the employee claimed wage payment before the Sub-district Court, the Court first of all considered that, according to the law, suspension or termination of the wage payment shall only take place after a written warning and that the employer shall send this warning as soon as the suspicion exists that a ground for suspension or cessation of wage payment has arisen. The Sub-district Court also noted that the occupational physician had never advised that the employee could perform alternative work and that the occupational physician had several times even advised not to maintain contact with the employee. According to the Sub-district Court, it is up to the occupational physician, and not to the employer, to determine what requirements an employee shall meet during illness. If the employer had disagreed with the occupational physician’s advice, he should have asked for a second opinion. Since he had failed to do so, the Sub-district Court shared the occupational physician’s advice
The employer was ordered to pay the wages, with a 25% statutory increase due to late payment, statutory interest and extrajudicial collection costs.

Obviously, it is not a surprise that the Sub-district Court conformed to the advice of the occupational physician. If the employer had disagreed, it would have been for him to ask the UWV for an expert opinion. Whether this would have been very successful may also be doubtful, but it would probably have been better for the employer, who litigated himself in the above case, to have timely asked for an expert advice.
When an occupational physician advises not to contact the employee at all, the employer would do well to ask the UWV for an expert opinion. This would completely block any reintegration and the UWV might blame the employer for following an advice that blocks the reintegration then. But the occupational physician would not have gone that far in the above case. He/she had advised to minimise the contact and later to avoid direct contact.

In the above case, the employer would have done well to appoint an independent case manager. He/she could have canalised the contact between the employer and the employee. There is no doubt that such a case manager would have advised the employer to act otherwise than he actually did.