Reporting sick as a strategic tool: the unintended legacy of the the WWZ

Thursday, 5:15 a.m. Another phone call from a client. “She called in sick. Just when we were supposed to be discussing her performance.” We heard the frustration over the phone. And we understood. Because we know this story by heart by now.

Since the introduction of the Work and Security Act in 2015 (WWZ), we’ve seen a recurring pattern. Employees calling in sick for strategic reasons. Not because they have the flu or their backs are not cooperating. But because time is precious.

The New Reality

Let’s be honest: the Netherlands is the champion of continued sick pay. With 104 weeks, we’re miles ahead of the rest of Europe. In England, it stops after 28 weeks, in Germany after six. In the Netherlands, an employer is required to continue paying wages for two years, often the full salary in the first year, thanks to collective labor agreements (“cao”).

At the same time, severance payments have been significantly reduced since the WWZ. The transition payment is a fraction of what employees could previously expect, based on the subdistrict court formula. The result? A new dynamic in employment matters.

Understanding the game

We see it happen every week. A conflict escalates, relationships are strained, and within a week, a sick leave report arrives. The company doctor is called in, recommendations are questioned, second opinions are requested, and expert opinions are sought from the Employee Insurance Agency (UWV).

For employees, it’s logical: the longer they stay on the payroll, the better. For employers, it means months of uncertainty, rising costs, and an organization that can’t continue.

The hard numbers

The statistics don’t lie. Sick leave is rising year after year, with burnout leading the way. But in our files, we see this above all: in the employment disputes we handle, more than half involve sick leave. Coincidence? We don’t think so.

What strikes us is that these aren’t always the ‘usual suspects’. Even motivated employees who have performed excellently for years resort to this method when they find themselves in conflict with their employer, for the reasons mentioned above.

What can employers do?

First: be aware of this dynamic. It often helps to preventatively inform the company doctor (of the occupational health and safety service) of a potential sick leave due to a conflict.

Second: consider incorporating the statutory minimum of 70% continued payment of wages in your employment conditions. This is only possible if the employer is not bound by a Collective Labor Agreement (CLA) that prescribes otherwise. Yes, that’s less popular. But it makes “escaping illness” less appealing.

Third: invest in effective conflict mediation. The company doctor (of the occupational health and safety service) will often also recommend mediation to resolve the impasse.

The Future

The current situation serves no one: not the employer stuck with exorbitant costs, not the employee stuck at home with no prospects, and not society footing the bill.

At Labour & Law, we see both sides of the coin every day. We help employers avoid the pitfalls. And we support employees who are genuinely ill, need to protect their rights, and navigate a jungle of regulations. Because that’s ultimately what employment law is all about: protecting employees and providing clear rules for employers.

The WWZ undoubtedly had good intentions. But experience shows that good intentions can have less favorable side effects that are difficult to explain.

The fact that the obligation for (small) employers to continue paying wages for two years needs to be critically examined is evident from the motion by two opposing parties: the Socialist Party (SP) and the People’s Party for Freedom and Democracy (VVD).

One way or the other.