Not working, still pay?

In principle, an employee who is not working is not entitled to wages unless he is sick. Then the obligation to continue to pay wages during illness applies and the employee still receives wages. Another exception is situational disability: although the employee is not medically sick, in some cases he is still entitled to wages. Often there is then a labor dispute. The rules for pay for situational disability are likely to be changed soon.

With situational disability, an employee has called in sick but is not medically ill. The employee in question is unable to work due to working conditions - physical or mental - but not because of illness. In most cases, situational disability is due to a labor dispute with the employer or with (one of the) colleagues.

For the time being, the entry into force of the Work and Social Security Act (hereinafter: WWZ) on July 1, 2015 has not changed the rules for continued wage payment in the event of situational disability. However, an amendment to the current provisions is imminent, as a result of which entitlement to salary in the event of situational disability is likely to be different in the future. The intention is to change the current section of the law with the well-known adage 'no work, no pay, unless' (Section 7:627 of the Civil Code) into 'no work, no pay, unless'.
Actually, this change was supposed to take effect as early as April 1, 2016, but in the meantime the entry into force of the new article has been repeatedly postponed. Briefly put, under the new article the employer will be obliged to continue paying the wages of the employee, who is not medically sick, even if the employee does not perform the work - unless this risk (not performing the work) should be borne by the employee.

According to the legislator, with the intended amendment, the existing case law on continued wage payment for situational disability remains in force. It is explicitly not the legislator's intention to change the current situation. But is it?

Saying and proving

Under the current rules, it is the employee who must prove that he was willing to perform the stipulated work and that the cause for not doing so must be for the employer's account. As a result of the WWZ, the new article of law will stipulate that the employee who does not work is entitled to wages, unless the failure to work should be at his risk. Thus, the roles will be reversed.

With situational disability, in most cases both parties are at fault. After all, there is a labor conflict. The employer is only not obliged to pay wages if situational disability is solely or particularly the fault of the employee. However, if both parties are to blame for the labor conflict, the employer (after the change) is in principle obliged to continue paying wages to the employee. Compared to the current situation, in case of situational disability, the employer will be obliged to pay the wages sooner. The burden of proof will then rest with the employer, whereas it currently rests with the employee. In other words, after the change in the law, the employer will have to argue that there is an exception to the main rule and demonstrate why the employee is not entitled to wages in the relevant case of situational disability.

What should you pay attention to?

Do you suspect that when you report sick there is a labor conflict and thus situational disability? Then it is wise to call in the company doctor as soon as possible. Make sure that you as an employer take the initiative to restore the relationship with the employee. The employee will have to comply with his employer's reasonable requests to resolve the conflict. The employee should also follow the advice of the company doctor.

If an employee does not comply with the company doctor's advice or does not respond to your reasonable requests to resolve the conflict, point out these obligation(s) and the consequences of not cooperating. It is important that you put everything in writing, so that at a later stage - during any proceedings - you can prove that the cause for not working should be the employee's responsibility and risk. Even though under current law the burden of proof lies with the employee, this may change in the future. Moreover, the employer always has a duty of care to his employees and the responsibility to do everything possible to eliminate the cause of a labor dispute.