In principle, the sick employee is entitled to continued payment of salary for two years. In a number of cases, however, the employer may suspend or even discontinue the payment of salary. In practice, it is not always easy to distinguish the difference between suspension and discontinuation of salary.
Suspension of salary
The employer may suspend the payment of salary as long as the employee does not comply with (i) written and (ii) reasonable requirements for inspecting sickness. After all, the employer cannot himself verify whether the employee is ill and whether he is entitled to continued payment of salary. This is to be assessed by the company doctor. Examples of reasonable requirements are the obligation to visit the company doctor and procedural regulations when reporting sick.
When the employee complies with the requirements again, the suspension of salary ends. If it appears that the employee has actually been ill during the period of suspension, the employer must pay the salary for that period. The employer is then not liable for the statutory increase and statutory interest.
Discontinuation of salary
Contrary to the suspension of salary, which is used as a means of pressure, the discontinuation of salary is used as a sanction for (culpable) behaviour of the employee. The employer can discontinue the salary in the following cases:
- the employee deliberately causes his own incapacity for work;
- the employee provides false information during a medical examination during the application process;
- the employee hinders or delays his own recovery;
- the employee does not cooperate with measures aimed at recovery and resumption (of suitable work);
- the employee refuses to cooperate in drawing up, adjusting and evaluating an action plan;
- the employee refuses to carry out suitable work;
- the employee applies for the WIA benefit too late.
If the employee has a ‘good reason' for not fulfilling his obligations, the employer cannot discontinue the salary. In case of an unjustified discontinuation, the employer must pay the salary that was discontinued (including the statutory increase and statutory interest). In the case of a justified discontinuation, the employee, who decides to cooperate with his obligations again, is not entitled to the salary over the discontinued period.
Obligation to notify
Prior to the suspension or discontinuation of the salary, the reason for the sanction must be communicated immediately to the employee, as soon as it is suspected. In addition, the employer must make clear to the employee which of the two sanctions he will impose. Only a reference to the law is not sufficient.
The announcement can be made verbally as well as in writing. Nevertheless, it is advisable to make the announcement in writing. In addition, it is advisable to precisely indicate the period and the number of hours to which the suspension or discontinuation relates.
If the employer fails to make the (immediate) notification, no suspension or discontinuation of salary can be imposed. The purpose of this is for the employee to have clarity about his salary so that he can take action in time.
Key Action Points for Human Resources and In-house Counsel
The employer may suspend the payment of salary as long as the employee does not comply with (i) written and (ii) reasonable requirements for inspecting sickness. When the employee complies with the requirements again, the suspension of salary ends. If it appears that the employee has actually been ill during the period of suspension, the employer must pay the salary for that period. The employer is then not liable for the statutory increase and statutory interest.
Contrary to the suspension of salary, which is used as a means of pressure, the discontinuation of salary is used as a sanction for (culpable) behaviour of the employee. If the employee has a ‘good reason' for not fulfilling his obligations, the employer cannot discontinue the salary. In case of an unjustified discontinuation, the employer must pay the salary that was discontinued (including the statutory increase and statutory interest). In the case of a justified discontinuation, the employee, who decides to cooperate with his obligations again, is not entitled to the salary over the discontinued period.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.