An employee who suddenly reports being well again after nearly two years of continuous sick leave must be able to substantiate this. If they fail to do so, they will still forfeit their wages once the period of continued wage payment has expired. This is evident from a recent ruling by the subdistrict court in Zaanstad.1
What happened?
An employee had been working in a management position since 2011 and went on sick leave in April 2024. The company physician’s successive reports consistently painted the same picture: in addition to medical symptoms, there was an unresolved labor dispute, and that dispute had to be resolved before recovery could take place. Despite repeated advice to begin mediation, the process got off to a slow start.
Nearly two years after reporting sick, and eleven days before continued pay was set to end, the employee indicated that he felt recovered and considered himself able to resume his duties. The employer rejected the notice of recovery. Even after this notification, the company physician reported that limitations still existed and that a permanent return to work was not plausible as long as the labor dispute continued.
The employee then requested an expert opinion from the UWV. The insurance physician concluded that, as of March 27, 2026, he would be fit for work, provided that mediation had taken place. At that time, the mediation had not yet taken place. When the employer filed a request for termination shortly thereafter due to (alleged) financial irregularities, the employee filed a motion for preliminary relief with the subdistrict court to compel continued payment of wages and reinstatement.
What was the magistrate’s ruling?
The 104-week period of continued wage payments expired on April 8, 2026. After that date, the employee is only entitled to wages if he can demonstrate that he was actually fit for work as of March 27, 2026.
The subdistrict court judge did not simply accept the expert opinion. The parties had not been given an opportunity to present their cases, no medical information had been requested, and the insurance physician’s opinion was insufficiently substantiated. Furthermore, the expert opinion itself already contained a condition: fitness for work was contingent upon mediation having taken place. That condition had not been met.
The company physician also did not support the determination that the employee was fit for work. Although the employee’s capacity for work had improved slightly, full fitness for work was consistently and explicitly made contingent upon a resolution of the labor dispute.
In conclusion, the employee failed to demonstrate that he was fully fit for work as of March 27, 2026. Because the statutory period for continued wage payments of 104 weeks had already expired, the claim for wages is denied. The request for partial reinstatement (in effect: resumption of the reintegration process) is also denied. The documents did not show that the employer was unwilling to cooperate with mediation, while the employee himself had previously failed to respond to an invitation from the mediator.
What does this ruling mean for employers?
This ruling shows that a notice of recovery submitted just before the end of the period during which wages must continue to be paid does not automatically mean that you, as an employer, must continue to pay wages. After the 104 weeks have expired, the employee must demonstrate that he is in fact fit to work. A mere statement by the employee that they are feeling better is insufficient for this purpose.
Employers are therefore not required to automatically accept a return-to-work notice if the company physician’s reports paint a different picture. However, after a return-to-work notice is submitted, have the company physician immediately reassess whether the employee is able to return to work. If you decide not to accept the notice of recovery, be sure to document this decision in writing and provide a well-reasoned explanation.
Even an expert opinion from the UWV does not have to be the final word. The subdistrict court did not follow the expert opinion in this case because there had been no opportunity for both sides to be heard, the reasoning was insufficient, and the determination of suitability was contingent upon a condition that had not been met. If you, as an employer, receive an expert opinion, you should therefore critically examine how it was reached and the reasoning behind it before taking any action based on it.
Finally, it is important that the employer continue to play a demonstrably active and constructive role throughout the return-to-work process. In this case, it was taken into account that the employer was open to mediation, while the employee did not respond to an invitation from the mediator. The employer must therefore ensure that the company physician’s recommendations are followed, that timely action is taken, and that invitations, responses, and other reintegration steps are properly documented. This will enable the employer to demonstrate that its obligations have been met.
Is the end of the continued pay period approaching, and has an employee suddenly reported that they have recovered? Or have you received an expert opinion from the UWV that does not align with the company doctor’s findings? Please feel free to contact us. We’d be happy to help you determine the right course of action.
