Illness after cosmetic surgery: are you required to continue paying wages?

Illness after a cosmetic surgery is no reason to stop paying your employee's salary. The subdistrict court in Rotterdam recently ruled this in a case where the employee went to Turkey for cosmetic surgery and subsequently returned sick. The employer believes that it is not obliged to continue paying wages because the employee is alleged to have intentionally caused the illness. However, the employee argues that this was not purely cosmetic surgery and that the procedure was aimed at remedying medical complaints. In this blog, Ruud Olde and Bas Blaauwhof tell you more about the decision of the subdistrict court and the obligation to continue paying wages.

Employee not working, are you still required to continue paying wages?

The law provides that an employer is obliged to pay wages to the employee who has not performed his agreed-upon work. This is different only if the failure to perform that work should reasonably be borne by the employee. A separate regulation applies to the incapacitated employee.

The main rule is that an employer must continue to pay wages during the first 104 weeks in case of illness. However, the law contains a number of exceptions to the obligation to continue to pay wages during illness. For example, an employee is not entitled to wages during illness if the illness was caused by his or her own intent. This is a heavy criterion that is not easily met.

Cosmetic surgery: intent on disease?

The subdistrict court in Rotterdam recently ruled on the obligation to continue to pay wages during illness resulting from cosmetic surgery. An employee had been seeing her general practitioner for several consecutive years in connection with back complaints. As no permanent solution had been found, the general practitioner referred the employee to a plastic surgeon. The company doctor also ruled that there were medical complaints.

The employer confirms in writing its intention to stop the employee's pay because, according to the employer, the cosmetic surgery is not medically necessary and has not been medically permitted or deemed responsible. Failure to perform work is therefore at the employee's expense and risk, the employer claims. The employee had the surgery performed anyway and then reported sick to the employer. The employer was of the opinion that the employee had intentionally fallen ill as a result and stopped paying her wages. The employee then claimed payment of salary, claiming that the cosmetic surgery was medically necessary.

The parties agree that the employee was sick - and therefore disabled - immediately after undergoing the surgery. The question for the court to answer is whether the employee intentionally caused the incapacity for work by undergoing the surgery. That, as described earlier, would result in the employer not having to continue paying wages.

The subdistrict court considered that it was sufficiently plausible that there was a sufficient medical reason for the employee to undergo such an operation. The employee intended the intervention to reduce her complaints. It cannot be considered a purely cosmetic intervention which must be at her own risk and expense. The Subdistrict Court therefore ruled that there was no question of intent on the part of the employee. The employer must therefore comply with the obligation to continue payment of salary during illness.

Conclusion

The obligation to continue to pay wages during illness is not unlimited. An employee who has intentionally fallen ill loses his or her entitlement to continued payment of wages. However, intentional sickness on the part of your employee is not easy to prove. The ruling by the district court shows that even cosmetic surgery can result in you being obliged to continue paying your employee's wages.

If sufficient medical reasons exist to undergo the cosmetic surgery, your employee has no intention of any disability that follows the surgery. In such cases, it is advisable to carefully consider the opinion of medical specialists, if available, before deciding to stop the employee's wages.

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