The Bottom Line
- Third-Year Salary Risk: Dutch employers can be forced to pay a sick employee’s salary for a third year if their reintegration efforts are deemed insufficient by the Employee Insurance Agency (UWV).
- The Two-Track Rule is Not Optional: If a full and sustainable return to work within your company is uncertain after one year of sickness, you are obligated to start exploring external job opportunities for the employee (the “second track“), even while continuing internal efforts.
- Unresolved Disputes Create Liability: A persistent disagreement over work conditions, such as the balance between home and office work, can be enough to render a reintegration plan insufficient, triggering costly sanctions if not properly addressed.
The Details
In a recent ruling, the District Court of Gelderland upheld a significant wage sanction against an employer, ordering them to pay an additional year of salary to a long-term sick employee. The case hinged on the employer’s failure to initiate a “second track” reintegration process. The employee, who had been on sick leave for over a year, was working nearly all their contractual hours. However, a fundamental disagreement persisted: the employee required a low-stimulus environment and wanted to work from home two days a week, while the employer insisted on more office presence for team cohesion. The employer never committed to a permanent hybrid work arrangement, instead taking a “wait and see” approach.
The core of Dutch reintegration law is the “two-track policy.” While the primary goal (“first track“) is always to return an employee to suitable work within the company, the law recognizes this is not always possible. If, after the first year of sickness, there is any doubt about a sustainable and structural return, the employer has a legal duty to start a “second track.” This involves actively helping the employee find a suitable position at a different company. The court found that the unresolved conflict over the work location created precisely this type of uncertainty. Because the employer could not guarantee a permanent, suitable role under agreed-upon conditions, the reintegration result was not considered “satisfactory.”
The court concluded that the employer had no valid reason for failing to start the second track in parallel with their internal efforts. The company doctor had repeatedly advised engaging an occupational expert to assess the situation, but this advice was not followed in a timely manner. The court noted that while the employer’s investments in adapting the office and providing coaching (“first track” efforts) were substantial, they did not excuse the failure to comply with the mandatory second-track requirement. The ongoing uncertainty meant the employer should have broadened its approach to safeguard the employee’s chances of returning to the workforce, whether internally or externally.
Source
Rechtbank Gelderland
