'They've Been Sick for Months, We Can Let Them Go, Right?' A Dutch Sick Leave Myth

The Myth: "Our employee has been on sick leave for several months. Surely our financial obligation is over, and we can terminate the contract to hire a replacement?"

This is one of the most common and expensive misunderstandings for international companies operating in the Netherlands. The assumption that long-term illness provides grounds for dismissal—as it might in other jurisdictions—is a direct route to a legal minefield.

The Scenario: A Costly Assumption at 'Global Innovate B.V.'

Meet David, the recently appointed Head of People for Global Innovate B.V., a fast-growing American tech scale-up in Amsterdam. One of his top software engineers, Anna, has been on sick leave for four months due to a severe burnout. Back in the US, this situation would have been manageable. The company’s obligations would be limited.

Confident in his experience, David assumes the Dutch system must be similar. He believes the company has been more than fair by paying Anna's salary for this long. With a critical project deadline looming, he feels immense pressure to fill her role. He advises his leadership team: “We’ve fulfilled our duty. It’s time to terminate Anna's contract on the grounds of long-term illness and hire a replacement.”

The company sends Anna a termination notice. A week later, a letter arrives from Anna’s lawyer. Global Innovate B.V. has not only acted unlawfully but is now facing a legal dispute, significant potential damages, and a severe disruption to their operations. Their seemingly logical business decision has become a costly legal crisis.

The Reality: The 104-Week Rule and Dismissal Protection

Dutch employment law is designed to protect employees during illness, placing a significant duty of care on the employer. Here’s what David misunderstood:

1. 104-Week Salary Obligation: An employer is legally obligated to continue paying at least 70% of an employee’s salary for a period of up to 104 weeks (two years) during illness. Many Collective Labour Agreements (CAOs) and individual employment contracts even require payment of 100% of the salary for the first year.

2. Prohibition of Termination (Opzegverbod): There is a strict statutory prohibition against terminating an employee's contract because of their illness during this 104-week period. Any attempt to do so is likely to be deemed unfair dismissal by a Dutch court.

3. Reintegration Efforts (Wet verbetering poortwachter): Beyond paying the salary, the employer has a legal duty to actively assist in the employee's recovery and reintegration. This involves creating a plan of action with the employee and the company doctor ('bedrijfsarts') and exploring all suitable work options, first internally and then externally if necessary.

Firing Anna was a direct violation of these core principles.

The AI Clarity Moment: A Simple Question, A Clearer Path

Before taking action, David could have turned to an AI legal copilot for instant clarity. By asking a simple question, he would have avoided the entire crisis.

David’s prompt to LawYours.AI: "What are a Dutch employer's obligations when an employee is on sick leave for more than 3 months?"

LawYours.AI Instant Answer:

In the Netherlands, an employer's obligations for a sick employee extend for up to 104 weeks (2 years). Key obligations include:

• Continued Salary Payment: You must pay at least 70% of the employee's wage. Check your CAO, as it may require 100% for the first year.
• Prohibition on Dismissal: You cannot terminate the employment contract due to the illness during this 104-week period (see Article 7:670 of the Dutch Civil Code).
• Active Reintegration: You must follow the steps outlined in the 'Wet verbetering poortwachter', including engaging a company doctor and creating a reintegration plan.

Attempting to dismiss an employee on these grounds before the 104-week period has passed is legally prohibited and will likely be overturned.

This clear, source-linked answer would have immediately shown David that his assumptions were wrong, saving Global Innovate B.V. from a costly legal battle and reputational damage.

3 Simple Rules to Remember

1. The 104-Week Rule is Law: Always assume you have a two-year obligation for salary continuation and reintegration. Budget and plan for this possibility.
2. Never Terminate for Illness: Do not initiate dismissal proceedings because an employee is on sick leave within the protected two-year period. Focus on your reintegration duties instead.
3. Engage Experts Early: Work closely with your company doctor ('bedrijfsarts') and an HR/legal advisor from the start of any long-term sick leave. Document every step of the reintegration process meticulously.

Disclaimer: This article describes a fictionalized scenario for illustrative and educational purposes only. It is not intended to be and should not be construed as legal advice. Any resemblance to actual events, entities, or individuals is purely coincidental.