'Wage sanction test': medical advice from company doctor becomes leading

After two years of illness, the UWV assesses whether employer and employee have met their reintegration obligations. This assessment is called the RIV test (reintegration report test). On October 1, 2020 Minister Koolmees submitted a bill to ensure that from now on not the opinion of the insurance physician, but the advice of the company doctor is leading in this RIV test. The legislative amendment should take effect on September 1, 2021. What exactly will change? 

Current rule: opinion of insurance physician often decisive

Employers must continue to pay their sick employee's wages for 104 weeks. During this period both the employer and the employee are subject to reintegration obligations. The employer is obliged to be guided by the company doctor. After these 104 weeks the UWV assesses whether the reintegration obligations have been met (the RIV-test). If the efforts according to the UWV are insufficient, the UWV can impose a wage penalty on the employer of up to 52 weeks. The employer must then continue to pay the employee's wages.

In the RIV test, the UWV is guided by the labor expert's report. If the labor expert has medical questions or if there are ambiguities about the file, the labor expert engages the insurance physician. The insurance company doctor is in any case called in if the company doctor has set a medical time limitation, if the company doctor considered (periods) of no or little reintegration possibilities present and if the company doctor has judged that there are no reintegration possibilities at all (so-called reintegration-inhibiting advice). 

The opinion of the insurance physician may differ from that of the company doctor. There is then a 'medical difference of opinion'. This ground can lead to the UWV imposing a wage penalty, while the employer has actually followed the advice of the company doctor. The only remedy available to the employer in such a case is to hold the company doctor liable, a difficult route to take. 

Future regulation: judgment of company doctor leading

The government wants to remove the uncertainty about whether or not a wage penalty will be imposed based on a medical difference of opinion. The proposal is that the advice of the company doctor on the taxability of the employee will be leading. The labor expert assesses whether the employer and employee have made the reintegration efforts advised by the company doctor. Based on that assessment, the UWV concludes whether a wage sanction should be imposed. Thus, the insurance physician no longer assesses the advice of the company doctor.

It will still be possible to impose a wage penalty, but a wage penalty due to a medical disagreement will no longer occur after the law takes effect.

Note!

The bill is expected to take effect on September 1, 2021. This means that until then the UWV may still impose a wage sanction based on a medical difference of opinion. When in doubt about the advice of the company doctor, it may therefore be advisable to ask the UWV for an expert opinion.

Other measures

As far as we are concerned, the change to the RIV test is a welcome adjustment that contributes to greater certainty and clarity for employers during the reintegration period.

The change is part of a larger package of measures announced by the minister back in 2018 that aims to remove bottlenecks for employers when it comes to continued sick pay. For example, as of January 1, 2020, the SME absenteeism insurance took effect. Also, since mid-2020, the UWV adds a summary to the labor expert's argumentation on the RIV test, making it more transparent. In addition, there is yet to be a premium discount for employers for the second year of illness and the minister wants to start second-track experiments that can lead to more reintegration with another employer.

We will keep you informed of developments!