Too sick to enjoy your vacation

Disabled employees are also entitled to vacation and can take vacation days. At least that is the basic assumption. There are some exceptions to this. As a result, disputes regularly arise about whether or not sick employees' vacation days have expired or been taken. In this blog, we therefore discuss the vacation rights of employees who are unfit for work. In doing so, we provide some tips for employers. 

Right to vacation

Sick employees are also entitled to vacation. During recorded vacation, an employee does not have to perform modified work, comply with reintegration obligations or abide by other sickness regulations. The employer must continue to pay an incapacitated employee his normal wages during vacation. In most cases, this is more than the adjusted wage due to disability.

An employer is obliged to inform a sick employee that he can still take vacation. In doing so, he must also indicate that his vacation days will expire if the employee does not take them. If the employer complies with this information obligation, then the statutory vacation days of a labor-disabled employee expire, in principle, in the same way as for non-disabled employees. That is, six months after the end of the calendar year in which they were accrued. Thus, an incapacitated employee certainly benefits from taking vacation days, and an employer must therefore inform him to a far-reaching extent.

Tip #1: Point out your employee's ability to take vacation days and the expiration of (legal) vacation days if he or she fails to do so.

Unable to take vacation days

An employee's vacation days do not lapse if he or she is unable to take them. An example is an employee who is exempt from performing (suitable) work and reintegration obligations due to full work disability. If an employee is unable to take vacation days, his statutory vacation days will not expire until after five years.

Tip #2: Check with the company doctor about an employee's ability to take vacation days.

Explicit consent

If an employee is sick during an established vacation, the employer is not authorized to cancel vacation unless it:

1. is with the explicit consent of the employee;
2. agreed in advance in writing (in the employment contract), for up to the number of vacation days in excess of the statutory requirements.

Point ii. provides little ambiguity: an employer can agree with an employee in the employment contract that sick days count as vacation days, up to the maximum number of vacation days above the statutory limit.

Consent, however, is a different story. In a recent real-life example, the employee in December 2017 requested six weeks of leave in May and June 2018. The employer honored this request. In January 2018, the employee became disabled. He told the company doctor in May 2018 that he planned to go on vacation. That day, the employee also called his supervisor to ask if he was aware of his vacation plans. The supervisor agreed and the employee went on vacation. After his vacation, the employee wrote off 29 vacation days taken. The employee then filed a lawsuit alleging that he had not consented to the write-off of those vacation days.

The subdistrict court ruled that confirming his plans to his supervisor was asking for "consent. In contrast, the Den Bosch District Court ruled that no explicit consent was given to write off those vacation days. Therefore, the employer was not allowed to do so.

This judgment of the court can be questioned. For example, according to regulations, the employee simply had to be available for the company doctor. In addition, the opinion of the subdistrict court that there was consent is easy to follow. It is possible that this case will be appealed to the Supreme Court. However, this case illustrates how careful an employer must be when granting vacation to incapacitated employees.

Tip #3: Clearly agree with incapacitated employees to take vacation days and record.

Leave and sick leave regulations

A clear leave and sick leave regulation - whether as part of a personnel regulation or not - can provide a lot of clarity. Employees are expected to be familiar with internal regulations. If they contain clear agreements, this can provide guidance afterwards to take a certain position. It is also advisable to remind an employee of these regulations again during illness.

Tip #4: Have clear leave and sick leave rules and make sure employees know them.

Conclusion

Disabled employees can, in principle, "just take" vacation. However, ambiguities can arise. Point out your employee's ability to take vacation, make clear arrangements for taking vacation during illness, and check with the company doctor about the employee's ability to take vacation. A clear leave and sick leave agreement is recommended. This will prevent any disagreements afterwards. Are you dealing with an incapacitated employee? Or do you have questions about drawing up internal regulations? If so, please feel free to contact us and we will be happy to help!