Holiday fever and holiday itch

By Mr. Tjeerd Hoekstra, CMS   The holidays are just around the corner! In less than two months, the Netherlands will be travelling en masse to their holiday destination. What about employees who are unable to work for a long period of time, or employees who become ill while on holiday? This contribution provides a brief overview of the rights and obligations of employers and employees in situations of holiday and illness, or vice versa. The employer grants the employee a holiday entitlement. This holiday entitlement is divided into two parts. The statutory holiday days and the extra-statutory holiday days. Every employee is entitled to four times the number of contractually agreed working hours per week. In other words: an employee with a full-time employment contract of 40 hours is entitled to 20 holiday days. These are the statutory holiday days. Most employers grant a higher holiday entitlement, for example 25 holiday days. Of those 25 holiday days, five holiday days are then considered extra-statutory holiday days. The employee also accrues holiday days during the period of incapacity for work.

The incapacitated employee and vacation

The employee who is incapacitated for work has the obligation to promote his recovery and to reintegrate into the work process within the possibilities available. The starting point is that this obligation extends within the duration of the employment contract. What if a long-term incapacitated employee wants to go on holiday? During a holiday, an incapacitated employee will not be able to focus on his reintegration. In order to avoid the reintegration obligation, the long-term incapacitated employee will have to take holiday days and submit a request to the employer to do so. If the employer deems this necessary, the company doctor can be asked to assess whether the holiday will hinder his recovery or not. In practice, it will not always be clear whether the long-term incapacitated employee can make reintegration efforts and, if so, how many hours per week this concerns. If the employee does not perform adapted work – and is not actually at the workplace – it is not always clear whether the employee's activities can be regarded as a holiday (for example in the case of burnout). The employer is advised to formulate a clear policy on this in the absence protocol, which states that the employee will have to apply for vacation if he intends to leave his (permanent) nursing address for a longer period of time during incapacity for work to go on vacation. Only in this way can the balance of accrued vacation days be correctly recorded and the employer can prevent the employee from retaining vacation days – by not taking them – while the employee is still enjoying vacation.

Holidays and the incapacitated employee

It is also possible that the employee who has requested a holiday and is enjoying a holiday becomes incapacitated for work during the holiday. For example, by eating exotic food or having an accident while water skiing on the Mediterranean Sea. In these cases, the Civil Code stipulates that the days of the holiday on which the employee is incapacitated are not considered as holiday days, but as sick days. In this case, the employee will have to report sick to the employer – from his holiday address – and upon his return he will have to submit a statement from a doctor (and other evidence of the incapacity for work) showing that the employee is ill. In addition, the employee must be reachable by telephone for the company doctor. As soon as the employee returns from holiday, an appointment with the company doctor will follow. For this situation too, it is advisable to clearly establish a policy in the absenteeism protocol.

 Deviating agreements

As indicated above, there is a distinction between statutory and extra-statutory vacation days. The employee cannot waive the statutory entitlement to vacation days, not even during illness. However, the employer and employee can make written agreements about limiting the accrual of extra-statutory vacation days and the use of extra-statutory vacation days in the event of illness instead of sick days. These agreements will often have to be included in advance in the employment contract - and not only in the absence protocol - so that the employer can rely on them. The following applies to the employee: be well prepared for the trip. The following applies to the employer: these preparations must have been made long before the employee goes on the trip. A clear and detailed absence protocol and clear agreements in the employment contract are part of the standard equipment in that case.