Pay during illness: more money for employees who partially return to work?
Many employers will recognize this scenario: an employee has been ill for some time and, on the advice of the occupational physician or occupational health and safety service, carefully begins to reintegrate, for example a few hours a day. But what does this mean for the employee’s pay? Is the employee entitled to more pay than they received when they did not carry out any work at all?
The short answer to this question is ‘no’. Employees generally do not have that right, as the Dutch Civil Code does not distinguish between being partially ill or completely ill; an employee is either ill or not.
What is ‘ill’ when it comes to the continued payment of wages?
An employee is ill for purposes of the continued payment of wages if they are unable to carry out the work agreed under the employment contract (the ‘stipulated work’). During this entire period, the employee is entitled to 70% of their salary (capped at the maximum daily pay, i.e. EUR 274.44 as of January 1, 2024), with the lower limit being the statutory minimum pay (EUR 95.51 as of January 1, 2024) during the first year of illness.
Starting point: if you are ill, you are ill, so no increase in pay on a partial return to work
This means that, in principle, this general right to the continued payment of wages during illness continues to apply, even if the employee partially resumes their work. After all, the employee is not then carrying out the stipulated work. Unless an applicable collective bargaining agreement or internal policy at the employer includes a different arrangement, the entitlement to pay does not therefore increase just because the employee carries out reintegration work.
Exception: more pay based on good employment practices?
It does follow from the case law of the lower courts that an exception to the foregoing general rule is possible. Whilst not carrying out their stipulated work, an ill employee may carry out a substantial amount of work that goes (a lot) further than just occupational therapy. If that is the case, the general principle of good employment practices may entitle the employee to more pay than if they did not work due to illness.
In short, save for exceptions, an employee who partially returns to work as part of their reintegration is not entitled to more pay than an employee who ‘just’ stays at home. A practical tip here is that employees may be more motivated to resume their work if they are paid more for hours worked than for hours they do not work. Of course, the advice of the occupational physician or occupational health and safety service should always be followed.
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