If an employee is incapable to do his own work, due to sickness, the employer has to search for other work in his company that the employee is capable of doing. The employer is obliged to offer “suitable work” available to the employee, and the employee is obliged to do this work. For that work, the employee is entitled to compensation belonging to that work, the so-called “wage value” of the work conducted, but in the first 104 weeks the employer has to continue to pay at least 70% (and based on agreements in the CAO or the labor agreement sometimes 100%) of the original wages.
What happens if the employee is absent for that suitable work if he becomes sick (again)? In those first 104 weeks the situation is clear: the employee is entitled to 70% or 100% of the original wages anyway. But after that 104 week period has expired, the situation is less clear. According to legislation, the employer, in case of repetitive absenteeism due to sickness, does not have to pay wages to the employee repeatedly for 104 weeks. Only if the employee does his original work fully for at least four weeks (in time, duties and burdens), and then falls sick again, is the employer obliged to again pay 70% or 100% of the wages again. But the employee conducting suitable work does not fully conduct his own work and therefore, if he is absent again due to sickness, there is not a new right for continued payment of wages during sickness. Legal history does show that the legislator “considered it reasonable” that a new employment contract is entered into for the suitable work, if it has been determined that the employee is permanently incapacitated for his own work. With such a new employment contract, new absence due to sickness does mean that the employee gains a new right to continued payment of wages during sickness. But it is unclear whether offering such a new employment contract is a strict obligation for the employer, and as long as it is unclear if the employee is permanently incapacitated for his original work, there are no benefits to the employee.
What about the facilities for providing income to employees who are partially incapacitated for work, who conduct suitable work after the 104 week period and then are absent due to illness? What are the rights of these employees, who are reintegrating properly, if the employer no longer has to pay them wages? If the employee is absent due to the same sickness that caused him to be sick at the end of the 104 weeks, the employee will receive WIA benefits (immediately) or WAO benefits (after four weeks). But if he falls sick with another illness, what is the employee entitled to then? The question was whether the employee would be entitled to sickness benefits. After all, the Sickness Act is also intended as safety net. For a longer period, court cases had been instituted about this right to sickness benefits, and different rulings were issued. Now, the Central Appeals Tribunal has given the final verdict. Unfortunately, the UWV was found to be in the right. Like the UWV, the Central Appeals Tribunal finds that the cases where sickness benefits can be granted have been extensively listed in the law, and that this case is not part of that list. To the extent that there is ‘shortfall’ in providing income for reintegrating employees, according to the Central Appeals Tribunal, the legislator, not the courts, have to solve that problem.