A UWV sanction extending the employer’s obligation to continue paying wages during illness arises when the employer does not deploy the second track in time. It is therefore important for employers to know what the second track is and when it must be deployed. It has emerged that the occupational health service can also make mistakes in this regard, and that this is not an excuse for the employer as a defence against that sanction at the UWV.

Deployment of the second track

The second track should, in principle, be deployed after 1 year at the latest, in the context of the first-year evaluation. This can go together with any reintegration activities still ongoing under the first track. The second track can then only be omitted if there is concrete prospect of resumption within the employee’s own company, i.e. when there is a prospect of (partial) resumption of work in the short term.

Wage continuation sanction

There are a number of grounds on which the UWV can extend the obligation to continue paying wages. One possible ground is when the employer has made insufficient reintegration efforts, possibly by deploying the second track too late (or not at all). The UWV assesses the employer’s reintegration effort obligations using the following steps:

Step 1:

The resumption should, as far as possible, align with the employee’s remaining earning capacity.

Step 2:

It is assessed whether the employer could reasonably have arrived at the reintegration efforts made. The starting point is that if there are work opportunities, the employer must make efforts for reintegration.

Step 3:

A complicated and uncertain medical condition, or an incorrect judgment by the company doctor, does not constitute a valid ground for the employer to omit reintegration efforts. An expert opinion from which the employer could reasonably derive confidence that he was doing enough, can, however, constitute a valid ground.

The wage sanction can moreover be imposed for not complying, or not fully complying, with the following obligations:

• the employer keeps no records of the course of the employee’s incapacity for work and reintegration;
• the employer does not draw up an action plan, does not comply with it, or fails to carry out a periodic evaluation;
• the employer does not draw up a reintegration report, does not do so in time (at the latest in the 82nd month after the first day of illness for the WAO, or at the latest the 88th month for the WIA), or does not provide a copy of it to the employee;
• the employer fails to provide the reintegration report in time to the employee for whom an extended waiting period applies by joint request;
• the employer does not have itself assisted by an occupational health service with regard to the above obligations.

Tips for practice

In light of the above, we would like to give you the following tips:

• Make sure the second track has been deployed after 1 year at the latest, and be aware that reintegration efforts for the benefit of the first track do not exclude deployment of the second track.
• The wage continuation sanction can be stopped if the reintegration obligation is subsequently complied with.
• Be aware that the employer is always (ultimately) responsible for deploying the second track. So never blindly trust the labour expert or the company doctor. Even after incorrect advice from the company doctor, the employer is still liable!

Should you like advice on this topic, please contact Ms. Hella Vercammen at phone number 020-3450152 or email info@thelegalcompany.nl