Illness and functional limitations; may I or may I not ask if my sick employee thinks he or she can work from home?

When an employee calls in sick, as an employer you are far from allowed to ask everything you would like to know. The Personal Data Authority (AP) issued policy rules in 2016 that reflect information about what employers may and may not do around counseling sick employees. Those AP policies regularly lead to questions. The AP therefore recently launched a campaign to clarify some of the rules.

It is necessary for you as an employer to have information with which to determine how to proceed with your employee's work. You also need information to assess whether you should continue to pay wages. Therefore, you may also record that information.

The following information may be recorded about your sick employee:

• The phone number where your employee can be reached and the (nursing) address.
• How long your employee thinks the illness will last.
• What his/her ongoing work and appointments are.
• Whether the employee's illness is related to an accident at work. But you may not ask whether the absence is work-related and, for example, related to a snappy performance review that just took place.
• Whether there is a (traffic) accident with recourse. This means that you may be able to recover the costs of sick leave and reintegration from the person who caused the accident.
• Whether your employee falls under 1 of the 4 safety net regulations under the Sickness Act. In doing so, your employee is not always required to report under which scheme he/she falls.

The AP also writes what constitutes "non-emergency information. The AP's website states, "As an employer, it is important to know how long your employee thinks his/her absence will last. But it is nínecessary to know what someone has. And why that is. So you may not ask about that either."

What is also not allowed just like that is inquiring about the employee's functional limitations and capabilities. According to the AP, this may only be discussed "once the company doctor has identified the functional limitations." That instruction seems to clash with the general obligation of employers to discuss with the employee what possibilities there are to resume work and work on reintegration.

Only if there is a threat of long-term absence (longer than 6 weeks) is there an obligation to ask the company doctor for a problem analysis and advice. Given the AP's recent clarification of how the rules should be interpreted, it seems that the company doctor should be involved much earlier from now on if you, as an employer, want to avoid violating the AP's policy rules. This creates unnecessary costs for employers and often delays the reintegration process because of long waiting times with the company doctor.

It is understandable that attention is paid to the privacy rights of (sick) employees, but the rules now seem to go further and further. A simple question whether an employee thinks he is able to come to work or perform work from home despite his limitations should be possible, it seems to me. Unfortunately, the AP seems to see it differently and prescribes a prior opinion from the company doctor. So you as an employer should take that into account.