It is important that the employee who becomes ill during his or her holiday reports it to you. In addition, the employee should comply with control regulations.. For example, an employee will have to be examined by a (company) doctor. The (company) doctor can determine whether the employee is incapacitated for work.
However, an appointment to see the company doctor in the Netherlands when the employee becomes ill abroad does not always seem to be possible for the employee. How can you best deal with this as an employer?
In the event that the employee is on holiday in a Member State of the European Union, European legislation exists. According to EC Regulation 987/2009, the employee must notify you within three days of the start of his or her illness. Subsequently, the employee must have a medical examination by the competent body of the place where he or she is staying within three days. The competent body here means a similar body to the UWV (Employee Insurance Agency) in the Netherlands. You will then be bound by the judgement of the medical certificate issued by that body. Therefore, you may not require a sick employee abroad to return to the Netherlands for a check-up.
In the event that an employee falls ill while on holiday in a country outside the EU, it is possible that there is a treaty in force with similar or different arrangements on absenteeism. If there is no treaty, Dutch law applies. Thus, the employee should report sick to you. You may require the employee to send you a doctor's certificate, written in a language you understand (e.g. German, English or French) indicating that the employee is ill and, if necessary, unable to travel due to illness. If the certificate shows that the employee is able to travel, you may require a sick employee abroad to return to the Netherlands.
The opposite situation is also possible: an employee has been ill for some time and asks you to go on holiday. You cannot simply reject this request. If you are unsure whether the employee can go on holiday (for example, the employee wants to go on a ski holiday while his or her leg is broken), the company doctor can advise on this.
When you decide (after consulting the company doctor) to let the employee go on holiday, he or she is entitled to one hundred percent continued payment of wages. Even if he or she received less wages due to illness prior to the holiday (for example, seventy percent). This follows from a ruling of the Court of Justice of the EU on 9 December 2021. The Court ruled that, during his or her holidays, a sick employee must be in a comparable position as the employees who worked during that period. This means that the lower salary due to the illness cannot be taken into account during the holidays. Conversely, this means that these holidays must be deducted from the remaining leave of the employee.
It is advisable to have a sickness absence protocol setting out the rules, which the employee should adhere to in case of illness. It could also include a paragraph on what the rules are in the event an employee falls ill abroad. For instance reporting ill within three days to a competent body / doctor, but also communicating the location of the holiday.
The employment lawyers of Grant Thornton can help you with any questions about sickness or the drafting of a sickness absence protocol. We are happy to help you.
