The summer holidays are just round the corner. This is a good time to have another look at your absence policy. After all, what if an employee calls in sick whilst on holiday? What rules apply in that case, and what are you, as an employer, allowed and not allowed to do? In this article, we set out the key points for you to consider.
What is the legal position?
According to Article 7:638(8) of the Civil Code, sick days taken during a scheduled holiday may not, in principle, be counted as holiday days. The reason is clear: holidays are intended for rest and recovery – the so-called recuperative function. Logically, an employee who is confined to bed due to illness does not benefit from this.
Sick days are therefore not deducted from holiday entitlement, unless the employee expressly and voluntarily agrees to use their holiday entitlement whilst ill. As an employer, you cannot simply assume this is the case.
Please note: Ensure that consent is demonstrable (for example, in writing).
Different arrangements may apply to holiday entitlement in excess of the statutory minimum. For example, the employment contract or collective labour agreement may stipulate that these days are deducted in the event of illness whilst on holiday.
The courts apply strict standards in this regard. Conditions must:
- Be formulated transparently;
- Not be hidden in regulations that can be amended unilaterally;
- Be expressly agreed, preferably in the individual employment contract.
Curious to know how this works in the case of long-term incapacity for work? We explore this in more detail in this article.
What are you, as an employer, allowed to ask or do?
As soon as an employee reports sick whilst on holiday, the normal obligations regarding sick leave also apply abroad. The employer is bound by the privacy rules of the GDPR, which means that only limited information may be requested from the employee. However, the employer is permitted to ask the following questions:
- Where is the employee staying during their holiday (address)?
- On which telephone number can the employee be contacted?
- How long does the employee expect to be off sick?
- Is the employee able to travel back to the Netherlands?
The employer may therefore not ask for a diagnosis or specific details about the nature of the illness. Such information is covered by medical confidentiality and is intended solely for the company doctor.
Absence policy
To avoid misunderstandings, it is advisable for the employer to include clear guidelines in the absence policy regarding illness whilst on holiday. If an employee falls ill whilst on holiday, they must report this to the employer within 24 hours at the latest. In addition, the employee must consult a doctor whilst abroad and retain proof of this medical consultation.
If, at the end of the holiday period, the employee is unable to return home for medical reasons, they must demonstrate that travelling home is medically inadvisable. If there is any doubt about the foreign doctor’s certificate, the employer may require the employee to seek a second opinion from a doctor in the holiday destination designated by the employer. The employee is obliged to cooperate with this.
As soon as the employee has returned, they must contact the employer as soon as possible so that they can be called in for a consultation with the company doctor.
Sick abroad
Reporting sick from abroad may raise questions, particularly where the illness is not immediately apparent or verifiable. Nevertheless, even in such cases, an employer has options for having the report assessed. An occupational health doctor or health and safety service can often make an initial assessment of the situation remotely, for example via a video consultation. This assessment is the sole responsibility of the company doctor. The employee is obliged to cooperate with the assessment and must remain contactable at all times. Failure to do so may have consequences for the continued payment of wages.
In short, a sick note during the holidays is not ideal for anyone – neither for the employee nor for you as an employer. A well-coordinated absence management protocol prevents a great deal of uncertainty.
How does TK ensure you can carry on?
At TK, we understand that employment law is about more than just legislation and regulations. Our employment law specialists have extensive experience with absence management and return-to-work support, and can help you draw up or update a clear absence management policy that is legally sound and tailored to your organisation.
Would you like more information?
Do you have any questions about drawing up or updating your absence policy? Or do you want to be sure you’re acting in accordance with the law when dealing with illness whilst on leave? Please contact René or one of the other professionals from our employment law team. We’d be happy to help you find a solution.
