The sick cross-border worker: which rehabilitation measures apply?

 

Previously, we have published an article, in which we have explained which obligations rest upon a sick cross-border worker and his or her employer (see: https://www.spee-advocaten.nl/medical-check-up-by-company-doctor-cross-border-aspects).

We have also informed our clients about the 2016 verdict of the Court in Overijssel, concerning the rehabilitation obligations and the right to continued payment of wages during illness in relation to a cross-border worker. In March 2017, the Court in Overijssel has given another verdict in a case concerning a cross-border worker.

The latter case also concerned a cross-border worker (residing in Germany and working in the Netherlands) who became ill and could no longer work. The employee had sent statements of her German general practitioner (a so-called “Arbeitsunfähigkeitsbescheinigung”) to her employer. At a certain point, a discussion arose between employer and employee about the employee’s rehabilitation, in particular the question whether the employee was capable to perform suitable work or not. Completely against the advice of the occupational physician, the employee refused to perform suitable work. Therefore, the employer refused to pay wages to the employee. Subsequently, the employee initiated court proceedings, demanding payment of her wages.

What is special about this case, is the fact that the employee had already brought the action to recover back wages previously, but then, the Court declared that her case was inadmissible. Nevertheless, the case is declared admissible when the employee brings the action to recover back wages for the second time.

According to the Subdistrict Court, a cross-border worker may suffice with showing an “Arbeitsunfähigkeitsbescheinigung”. Such a document differs from the usual opinions from the occupational physician and the UWV we are used to in the Netherlands, and also contains rather scanty information. However, the employee cannot be blamed for the fact that in Germany a different type of statement is provided than we are used to in The Netherlands.

Therefore, the cross-border worker is – contrary to a “regular” Dutch employee – not obliged to request an expert opinion from the UWV. This is true because a cross-border worker is protected by European regulations. However, a Dutch employer can still request the cross-border worker to conduct activities in the field of rehabilitation. The employee has to cooperate with the rehabilitation activities and is not permitted to refuse to cooperate, according to the Subdistrict Court.

In the present case, the occupational physician ruled that the employee was capable of working 4 hours each day, and after two weeks, the employee was capable of working 6 hours each day. Yet, according to the employee, she was unfit for work, as stated in the “Arbeitsunfähigkeitsbescheinigung”. In the view of the Subdistrict Court, ‘incapacity for her own work’, does not mean that the employee cannot conduct adapted work, taking the limitations of the employee into account, as recommended by the occupational physician. Because the employee has refused to conduct adapted work, the employer has rightfully refused to pay wages to the employee. Therefore, the action of the employee to recover back wages was rejected by the Subdistrict Court.

Apart from the defence of the employee that she did not conduct adapted work because of her incapacity for work, the employee also pleaded that she did not conduct adapted work because of the fact that her employer stopped paying the wages of the employee. Hence, the employee relies on her right to suspend her own performance. The Subdistrict Court rejected this defence as well: the employer has rightfully refused to pay wages to the employee, because there was a discussion as to whether the employee was entitled to stay away from work, or not. For this reason, the employee was not allowed to suspend her entire performance. According to the Subdistrict Court, this is particularly true in cases such as this one, where problems arise regarding a sick cross-border worker with transboundary entitlements in the field of social security and where national legislation regarding rehabilitation obligations applies. The employee did not have the right to take the matter into her own hands, but should have started a procedure, to ask the Court to decide upon the dispute.

In this case, the employee concerned apparently did not have a problem with visiting the consulting hours of the occupational physician in the Netherlands. However, in case a cross-border worker is not medically capable of visiting the occupational physician in the Netherlands, he or she is allowed to refuse to visit the consulting hours of the occupational physician. Please consult our other articles on this matter.

In short, it is sensible for both employers as well as for sick cross-border employees to obtain relevant legal advice from a skilled employment lawyer about their rights and obligations concerning rehabilitation and the right to continued payment of wages during illness.

Should you have any questions about these matters, please do not hesitate to contact one of our employment law specialists. We are happy to help you.