12 Summary

In the Dutch system, an employee is generally entitled to partially continuing payment of wages from the employer in the first two years of occupational disability due to illness. The Netherlands occupies a unique position here. The cause of occupational disability is irrelevant (social risk); the employer should continue to pay, unless the employee deliberately caused their occupational disability, but this is hardly ever the case. Figures furthermore show that the major part of absence due to illness is non-work-related. Based on the contract of employment or the collective agreement (Dutch abbreviation: CAO), in many cases the continued payment of wages during illness is topped up by the employer to a higher amount. A top-up to 100% is not unusual during the first year, with the top-up being removed in the second year. The financial risk incurred by an employer in the event of the incapacity of an employee can be quite considerable. The influence the employer may exercise to prevent them from having to continue to pay wages during incapacity is limited due to the social risk. Furthermore, any wrongful behaviour on the part of the employee when the occupational disability arises barely impacts the wage payment obligation.

If the employee no longer has an employer, and the occupational disability continues, then there may be entitlement to sickness benefits (Dutch abbreviation: ZW). If the employee does have an employer, then there is nevertheless a number of situations in which sickness benefits are provided after all. After two years of occupational disability, there may be entitlement to unemployment benefits (Dutch abbreviation: WW) or benefits based on the Work and Income according to Labour Capacity Act (Dutch abbreviation: WIA), depending on the remaining earning capacity. In the former case, an employee is considered to be no longer occupationally disabled, despite established limitations relating to an occupational disability percentage of up to 35%. If the employee has an earning capacity of 35-80% (or temporarily of 80-100%) they will receive benefits based on the Return to Work Scheme for the Partially Disabled (Dutch abbreviation: WGA). In case of full and permanent occupational disability of 80-100%, there is entitlement to benefits based on the Income Provision Scheme for Fully Occupationally Disabled People (Dutch abbreviation: IVA). If this is evident at an early stage, the employee may already apply for such benefits within the period of continued payment of wages during illness.

Control requirements involve rules concerning the determination of the existence of occupational disability. The employer should provide these requirements in writing and they should be reasonable. Inspection itself is performed by an occupational physician, where there is an area of tension surrounding the right to medical privacy. If the employee does not comply with the control requirements, the employer may suspend the payment of wages during illness until the inspection has occurred. The employer does have to promptly notify the employee of this suspension. The suspension will lead to back-payments to the employee if they comply with the control requirements after all. The sanction is therefore not always effectively felt by the employee.

There are several built-in safeguards ensuring the employee is not affected disproportionately. First of all, these requirements can be known in advance. In addition, they should not be unnecessarily burdensome. Also, the role of the occupational physician ensures that the right to medical privacy is not breached. Finally, the measure on non-compliance is not irreversible: the suspended wage will still be paid out if the employee rectifies their default. The right of the employee to not share medical information with the occupational physician appears to exist mainly on paper. The employee who refuses this shall have to accept a wage suspension. If their livelihood is jeopardised as a result of this, the employee will have no real choice, and they will often change their mind under this pressure. The fact that the inspection by the occupational physician carries a great deal of weight ensures that it is not illness that dominates the debate, but occupational disability due to illness.

The promptness requirement that applies to the notification ensures that the employee knows ‘as soon as possible’ whether or not they will receive wages. The promptness requirement does not seem to be in the interest of the employer. An employer who, for example, first wants to further examine the facts when they suspect that suspension could occur, would no longer be able to suspend if the grounds for this were to be established but they failed to announce their intention at an earlier stage.

Absenteeism requirements involve cooperation and information commitments from the employee as well as the obligation not to impede or delay recovery (recovery requirement).

The very fact that cooperation and information obligations exist for the employee (in particular) seems a normal counterbalance to the wage and reintegration responsibility shouldered by the employer, as the cooperation obligation generally applies to the employee so as to assist the employer and the Occupational Health and Safety Service (Dutch name: ARBO-dienst) in the performance of their duties and tasks. Non-compliance with this obligation is not subject to an immediate sanction. The information requirement means that the employee may be expected to provide various types of information:

Only one information obligation is given a direct legal basis, namely the possible use of the no-risk policy. The other obligations would have to be based on reasonableness. Violation of information obligations is not subject to an immediate sanction. The balance between the importance the employee attaches to medical privacy and the financial importance the employer attaches to certain information is relevant. If data is provided to the occupational physician, privacy seems to be guaranteed; yet sometimes the employer is directly entitled to information. This is the case, for example, when giving the estimated duration or reporting whether or not occupational disability is related to working conditions. The employee, as part of a bigger picture, is expected to take a step backwards for the benefit of the collective: taking account of the interests of others takes precedence over the right to not have to report anything on the origin of occupational disability.

The recovery obligation means that the sick employee should do everything they can to promote their recovery, and should refrain from anything that may impede it. At the same time, every employee is entitled to freedom of treatment and freedom of choice of physician, so that they should also be allowed to refuse a given treatment, even if this leads to impediment. This freedom does not follow from legislation, while imputable actions are referred to here. This is to be read in the concept of ‘impede’ while it is not clear if this also applies to the concept of ‘delay’. The boundary of the right to self-determination up to the limit of what is reasonable seems to offer the employer little scope to force the employee to recover sooner: in reasonableness, the employee may refuse a great deal, claiming their right of selfdetermination. In article 28 paragraph 2 sub c of the Work and Income according to Labour Capacity Act, the medical treatment obligation of the employee is formulated more sharply. The employee who impedes or delays their recovery, loses their entitlement to wages during illness as a sanction, over the period of impediment or delay. An area of tension similar to that which exists with control requirements plays a role here, namely the tension between the legal freedom not to undergo treatment and the financial urge to have to do so after all.

In the event of the threat of long-term absenteeism, the employer is obliged to take reintegration steps. An important starting point with the formal requirements for reintegration is that these requirements are irrelevant when a satisfactory result is achieved. The route to a certain outcome is not relevant, as long as the outcome is adequate. However, the employer is not assured of achieving a satisfactory result in advance, and when such a result is absent, the fact of whether or not the formal steps were followed will be assessed after all.

The problem analysis, the plan of approach and its evaluations, the first-year assessment, expert opinion as well as the appointment of a case manager, are all instruments that may significantly contribute to a proper, efficient and structured progress of the integration. Expert opinion plays an important part here. It may prevent procedures or immediately offer the competent court an important framework in the settlement of disputes. The expert opinion procedure meets an actual need of both employer and employee. Yet from the perspective of transparency, carefulness and legal protection, there are major drawbacks to the current arrangement of expert opinion. The privacy protection of the sick employee complies with the requirements of the EU Court of Justice in terms of social security law, but there are hardly any provisions for it in terms of labour law. Although the Dutch Personal Data Protection Act (Dutch abbreviation: Wbp) does provide a number of rules, their interpretation by the Dutch Data Protection Authority (Dutch abbreviation: CBP) is stricter than is considered workable in practice.

An employer is obliged to focus reintegration on a return to the original employment situation, then on suitable employment and then on employment outside the organisation (‘second track’), where the contract of employment with the original company remains intact. There is a difference in terms of labour law and social security law: strictly following this order versus having to walk various tracks simultaneously. The employer should use assistants but employer and employee continue to share the final responsibility for the reintegration. Errors on the part of assistants will not release employer and employee from their obligations. A point of discussion is the question of when the reintegration is complete. This issue is addressed when the employee becomes absent again after having performed suitable employment for a while. I consider it defensible to assume, in terms of labour law, that the suitable employment has become the stipulated employment when suitable employment was pursued for not too short a period, its nature and scope are not called into question and no further reintegration efforts have been made. This line is not followed at the level of social security law: small (but permanent) adjustments do not yet make for new stipulated labour.

In the relationship between employer and employee, the reintegration activities and shortcomings therein are mainly addressed in dismissal cases. For the evaluation of the reintegration activities by the Institute for Employee Benefit Schemes (Dutch abbreviation: UWV), the basis is provided in article 65 of the Work and Income according to Labour Capacity Act: reasonableness. What exactly is understood by this is difficult to estimate in advance. Further implementation of this is not done through legislation but through policy rules of the Institute for Employee Benefit Schemes. These policy rules are not static but dynamic and, according to this institute, they are based on sources that continue to develop further. This offers little guidance as that which is expected from an employer thus constantly changes. Moreover, the policy rules frequently include norms that are open to interpretation such as ‘reasonable’, ‘adequate’, ‘sufficient’, as ‘required’ and ‘if necessary’, which are concepts that further contribute to uncertainty. It is therefore logical that employers seek refuge in requesting expert opinions. They desire certainty as to whether they are on the right track or in what manner they should adjust their approach. That employer and employee therefore see amajor accompanying and corrective role for the Institute for Employee Benefit Schemes (on request) is understandable and defensible. This does not affect their own responsibility for it may easily exist alongside this. If, in reasonableness, the employer has not done enough in terms of reintegration, the Institute for Employee Benefit Schemes imposes a wage sanction which, in principle, lasts for a maximum of 52 weeks. During this period, the employer should continue to pay 70% of the wages. The aim of this wage sanction period is to correct any shortcomings, after which the employer may request a reduction of this period.

Wage sanctions seem to entail a breach with legal certainty due to the unpredictability of the evaluation by the Institute for Employee Benefit Schemes. The normative framework offers little guidance in advance with regard to compliance. This may lead to differences in assessment by the institute. Yet according to the Central Council of Appeal (Dutch abbreviation: CRvB), the system of article 65 of theWork and Income according to Labour Capacity Act, article 7:658a of the Dutch Civil Code, and article 25 paragraph 9 of theWork and Income according to Labour Capacity Act is clear enough. Another aspect of legal certaintymentioned has to do with the justification of thewage sanction by the Institute for Employee Benefit Schemes. The Central Council of Appeal imposes minor requirements with regard to this, and refers to the personal responsibility of the employer and employee in the design of the reintegration process. The General Administrative Law Act (Dutch abbreviation: Awb) generally imposes higher requirements and asks for a clear, unconditional description of recovery measures to be taken.

The imposition of a wage sanction can only be done officially by the Institute for Employee Benefit Schemes, or if the employee has requested this and the waiting period has not expired. The absence of an explicit decision from the Institute for Employee Benefit Schemes to not impose a wage sanction means that the employee sometimes has no options left with regard to submitting their objection to this. In addition, the employee receives compensation from the Institute for Employee Benefit Schemes in the event of the unjustified non-imposition of a wage sanction (despite a request to do so), but this compensation does not cover all damages. In the event of unjustified imposition of a wage sanction, the employer may claim compensation, which is capped by the Central Council of Appeal. As a result, the employer may be left with damages caused by the unlawful conduct of the Institute for Employee Benefit Schemes.

Everything considered, the scope of the reintegration obligations of the employer proves to be broad. Not only are they responsible for control and should they continue to pay wages, but the employer also bears the cost of assistance, supervision of absenteeism, training, education and adjustments to the workplace. In addition, they have to ensure adaptation of the workplace organisation, work content, working methods and so on, as well as the creation of new roles to keep employees on board, or the search for a different employer. The initiative continually lies with the employer, who may have outsourced it but nonetheless remains responsible. The obligations of the employee seemto be less far-reaching: cooperating with administrative obligations and performing suitable employment. The role of the Institute for Employee Benefit Schemes is limited here. Besides the provision of interim expert opinions, on request and against payment, it only entails the assessment of the reintegration efforts during the application for benefits arising from the Work and Income according to Labour Capacity Act.

Grosso modo, it may be stated that the current Dutch reintegration law covers the legal elements that may lead to successful reintegration: the focus on a return to the original employer, intensive supervision and control of absenteeism, focusing the reintegration instruments on the employee and good organisation of reintegration. Only after application of the assessment framework, to wit the principles test, the flexicurity explanation and the priority rule, may it be judged whether the current reintegration law complies with the most relevant principles of flexicurity. This requires continued wage payment during illness, control requirements, absenteeism requirements and reintegration requirements to be assessed for their compatibility with equal treatment, subsidiary responsibility, socio-economic security, protection (including inequality compensation), solidarity and inclusion. If, in each of these areas, efforts are made towards achieving at least one of the six values or principles with respect to social law, then social justice is promoted for this area. Application of the flexicurity explanation is then an issue. This is elaborated further as not all Common Principles are equally important in reintegration. Application of the most relevant Common Principles means that flexicurity for occupationally disabled employees requires:

In the case of continued wage payment during illness, control requirements, absenteeism requirements and reintegration requirements the question applies as to whether they, in their current form, contribute to the realisation of flexicurity objectives as far as the contractual position, optimal employability and balance is concerned (flexicurity explanation)?

While the obligation to continue to pay wages in the event of illness does justice to the values and principles of socioeconomic security, protection and inclusion (but only for some categories of employees), problems may be recognised in other areas. In addition to a few minor objections, in particular the probability of, and even the incentive for, risk selection is a major point of contention in the area of equal treatment, solidarity and inclusion (where it pertains to access to (permanent) employment). Even when considered outside the strict framework of legal equal treatment grounds, this may -at least theoretically- lead to selection, based on genuine or supposed health aspects, in the case of recruitment, the choice for flexible work or the hiring as self-employed or premature dismissal. Preventive measures are not adequate and the government also seems to acknowledge this in the case of small companies. There is an additional conflict regarding solidarity, of which the ‘hardest’ case in point is the lack of collective financing. Private insurance has not provided sufficient compensation for this. After all, subsidiary responsibility is disregarded due to the lack of the requirement to ‘make every reasonable effort’ before the employer becomes responsible for continued wage payment.

Continued wage payment during illness does not contribute towards flexicurity objectives either, both in terms of contractual position and in terms of optimal employability. As far as balance is concerned, it even seems to be a contraindication, because of the one-sided emphasis on the strengthening of the position of the employee (through the wage supplements, for example) and because the employer is virtually made solely responsible.

The principles test leads to the conclusion that there are no noteworthy issues in the control of occupational disability where equal treatment, socioeconomic security, solidarity and inclusion are concerned. The problems lie in the area of protection and subsidiary responsibility. At a fundamental level, it can be observed that the employee de jure has the liberty to not be controlled, but de facto they are required to be controlled. In addition, subsidiary responsibility is not served, as the employer is required to prove occupational disability, rather than placing this responsibility with the employee.

At a more operational level, there is an objection concerning the promptness requirement, which undermines the balance in rights and obligations with regard to the position of the employer. The balance is furthermore skewed where it concerns the ineffectively felt stimulus in the case of non-compliance and (particularly for the employee and small businesses) the cost of expert opinion. Regulation of the control requirements nevertheless ensures the fulfilment of flexicurity objectives, because it contributes towards a flexible and reliable contractual position to a significant extent.

Absenteeism requirements are not in violation of equal treatment, solidarity or inclusion. A significant objection with regard to socio-economic security, protection and subsidiary responsibility is that it does not become sufficiently clear that the lapse of entitlement to wages in the event of impediment of recovery only applies to culpable conduct, and that this should logically also be the case in the event of delay, yet no evidence of this can be found whatsoever. In addition, protection is impacted due to the lack of opportunities for a second opinion in the event of lapse of entitlement to wages due to violation of the recovery requirement and the pressure that may be felt in connection with undergoing treatment, despite the fundamental ‘medical freedom’. The subsidiary responsibility is further impeded due to uncertainties, particularly those surrounding information obligations (which are barely developed in a legal framework) and the absence of sanctions for violations thereof.

The current design of absenteeism requirements does not, or barely, helps to achieve flexicurity objectives. The contractual position does not become more flexible or more reliable, there is no incentive for optimal employability and the balance between the rights of employer and employee is disturbed.

Reintegration requirements pay sufficient attention to socio-economic security, to protection and certainly to inclusion. In equal treatment, the problem of the potential risk selection plays a key role. Solidarity is lacking from these requirements as reintegration is left to the individual employer and their individual employee, with a very limited role for the Institute for Employee Benefit Schemes. In the field of subsidiary responsibility too, reintegration requirements leave a great deal to be desired: they do not include an obligation for the employee to first make every reasonable effort themselves.

Reintegration requirements do contribute to flexicurity. Not because the rights and obligations are in balance, for the burdens disproportionately lie with the employer. And neither because there is a flexible and reliable contractual position. It may just about be assumed there is flexibility, but the legal position is too unpredictable in many respects to be considered reliable. Because of the obvious impact of reintegration requirements, the contribution towards flexicurity comes down to working on optimal employability to the best of ability and the facilitation of transitions, both internally and externally.

After the assessment, an answer to the subquestion may be formulated. The way in which reintegration has materialised in the Netherlands meets the criteria of the principles test. Several principles that bolster its development may be continuously identified. This means that the minimumthreshold of the OMC is maintained, namely that one or more aspects of social justice receive consideration. Yet continued wage payment during illness, as well as regulation of absenteeism requirements, does not contribute towards the realisation of a relevant flexicurity objective. Requirements that do contribute towards this are control requirements, where there is a flexible as well as reliable contractual position, and reintegration requirements, due to their effect of encouraging optimal employability.

In the event of occupational disability, the employer continues to fully pay the average wage in the first six weeks. However, the Krankenkasse refunds 80% of this payment to employers who employ no more than thirty staff. After the period of continued payment of wages, an employee is entitled to Krankengeld for a period of 78 weeks, at the level of 70% of the average last-earned wage. These benefits are paid by the Krankenkasse to which the employee is affiliated. Depending on the remaining level of earning capacity, an employee may subsequently be entitled to benefits for long-term occupational disability, or to transitional benefits, when it is expected that the reintegration measures may still be successful. This system only differs in the event of occupational disability as a result of an occupational accident or occupational disease. In such cases, the employee is entitled to industrial injuries disablement benefits at the level of 80% of the last-earned wage as of the first day. After 78 weeks at the latest, these benefits may be continued indefinitely, but then the level is dependent on the degree of limitation.

The sickness reporting rules are very strict: the employee must report their occupational disability immediately and in accordance with the correct procedure, under penalty of possible dismissal. The employee is obliged to demonstrate their occupational disability with a statement from their GP, who assesses the situation on the basis of general guidelines. Occupational disability is established for a definite period of time, followed by a reassessment concerning the extension of the sickness period. The employer may request the medical service of the Krankenkasse to provide a second opinion. The employer may subsequently be informed whether or not the occupational disability results from the same cause, which may be of importance for determining the six-week period of continued wage payment. As long as the employee has not submitted a medical statement, the employer does not owe any wages.

Where it concerns their occupational disability, the German employee has obligations which are recognised and sometimes legally binding. They should report whether the occupational disability is caused by a contagious disease or through a fault of their own. To the best of their knowledge, they should also report whether the occupational disability results from the same cause as the previous sickness notification and if recourse to a third party is possible, providing all the necessary information on this. The employee should make every effort to recover as soon as possible and refrain from anything that could delay their recovery. This means that as long as a procedure or treatment is proportional, it should be undergone by the employee if no specific hazards or specific pains are anticipated.

The focus on reintegration has increased since 1 July 2001. This is due to the fact that, under the influence of law, the non-committal approach of the employer has been corrected and converted into obligations. This certainly applies to Schwerbehinderten and persons with a similar status, but gradually also to other occupationally disabled employees. First of all, there is a prevention obligation serving to prevent outflow of schwerbehinderte employees who, after all, are known to have limitations. As soon as absenteeism threatens to occur, the employer should take action, seeking assistance from third parties such as the Betriebsrat or Schwerbehindertenvertretung, so that the Schwerbehinderte may be retained within the company. The inflow of Schwerbehinderten into paid employment is furthermore stimulated by a quota system with a monthly fine for every unfilled quota place. The design of the system makes it possible to actually choose to pay the fine and no longermake efforts towards inflow.

In a broader sense, the core of German reintegration law is the obligation of the employer to conduct reintegration management. Small businesses (fewer than ten employees) are exempt from this obligation. Thresholds that furthermore apply to the applicability are the existence of a contract of employment for a period of at least six months and occupational disability of the employee for a period of at least six weeks.

The only obligation of the employee is to discuss reintegration management, but not to actively take part in it. This can be traced back to the legally guaranteed right to self-determination. Whether or not non-participation may be held against the employee depends on a balancing of interests in every individual case. If the employee does take part, the employer should continue to take the initiative and involve relevant third parties. The employee may nevertheless withhold their consent to certain steps at any moment in the process. The content and process of reintegration management is at their own discretion to a considerable extent, as is determining the specific final objective. What is clear though is that reintegration management should be aimed at ‘overcoming’ occupational disability and at preserving employment. For a major part, reintegration management is based on trust that a good conversation is possible. For the legal position, the distribution of burden of proof is important, and it is the employee who has an important task here in reintegration management, by having to identify which type of employment is still possible or which adjustments would enable them to function in spite of their limitations. This burden of proof shifts to the employer if reintegration management was not conducted or leads nowhere.

In terms of content, reintegration management is aimed at adjustment of the role of the employee or redeployment to a different, suitable role, which is to be created or made available if necessary. The focus here lies on the original employer, yet other companies may also be included in this in a group context. The employee can only be forced to accept such a role by means of an Änderungskündigung (English explanation of this term: “dismissal with the option of altered conditions of employment”). In terms of role suitability, aspects such as the nature of the work, the working conditions, the background of the employee, travel distance and travel options, and the particular features of the new working environment play a part. For role suitability, it is important that the wage level is the same or only slightly lower.

The gradual return to work in the original or suitable employment may also be part of reintegration management. With substantiation from a physician, the employee may make clear that a gradual build-up of the workload is conducive to a return to working life. They will have to indicate what they can do, what is required for this and what the result is expected to be. Such a result should be expected to be achieved within six months. There is no general obligation for the employer to start with a gradual return to work, but there is for Schwerbehinderten and persons with a similar status and also on the basis of a company agreement with the Betriebsrat. In the case of an initiative from the employer, an employee (Schwerbehinderte or not) is similarly not obliged to cooperate, since the gradual return to work does not fall under the employeremployee relationship. The employer and employee who are committed to a gradual return to work do not need to look beyond the initial employer. During an agreed gradual return to work, the employer is not required to continue to pay wages (after the first six weeks) and most normal rights and obligations in terms of labour law do not apply. During this period, the mutual relationship is an agreement sui generis, where the contract of employment is dormant. When the limit of the return to work is reached, the employee with limited work capacity is not entitled to an appointment for this lesser number of hours. However, an agreement may be reached on a temporary part-time appointment on top of the contract of employment, or on a temporary adaptation of the tasks. This way, work capacity may be tested, while the underlying contract of employment remains intact, albeit dormant.

In addition to reintegration management and the gradual return to work, the employee may claim a number of integration measures from the Krankenkasse: a work capacity investigation, employment on the basis of occupational therapy or a trial placement. If the employee applies for it, the Krankenkasse is obliged to allocate the measure. Such an application is not optional. If the Krankenkasse is of the opinion that a situation occurs in which such reintegration measures are possible, the employee may be obliged to apply for them. A weak spot in the reintegration of sick employees in Germany is the compliance sanction. Formally, not a great deal is mandatory during the term of the contract of employment. Compliance assessment in fact only occurs when the employer wishes to dismiss and this dismissal is considered in advance by the Integrationsamt, or, subsequently, by the competent court. This is, incidentally, more often the case than in the Netherlands, because in Germany there is the notion of the Änderungskündigung. An employer who does not want to part ways with their employee but wishes to amend the conditions of their employment because of illness, should also take into account the assessment of the extent to which reintegration management was pursued or a gradual return to work was considered. In the absence of a dismissal permit, the Betriebsrat is the only party that should exercise control. The employee who does not participate in reintegration management or in a gradual return to work may face termination of employment (and an offer of re-employment under new terms) or a reduction or refusal of their Krankengeld.

As with the Netherlands, the four elements of German reintegration law should be screened for the extent to which flexicurity objectives are pursued, and more specifically for their contribution to the contractual position, optimal employability and/or balance.

The conclusion for continued wage payment in the event of illness is that there is no flexible and reliable contractual position: the scope for flexibility is virtually nonexistent. The contribution by the German arrangement for continued wage payment towards optimal employability is supposed to originate from the apparent lack of risk selection and from the incentive for the employee whose income is reduced after six weeks after all. Viewed marginally, this contribution appears to be the focus on ‘medizinische Rehabilitation’. The division of responsibilities and costs in continued wage payment between employer, employee and Krankenkasse is indeed balanced, and contributes to the realisation of flexicurity objectives.

The conclusion regarding control requirements is that the regulation does not lead to flexible and reliable contractual positions. There is a strong focus on terms and sanctions in the case of non-compliance, in which I perceive little flexibility but all the more reliability. Optimal employability is not promoted either, but there seems to be an effective balance in the rights and obligations between employer and employee. Because of this latter aspect, the control requirements contribute to flexicurity.

The conclusion for absenteeism requirements is that they essentially do not lead to a more flexible and reliable contractual position. The emphasis is on reliability as, more so than in the Netherlands, the obligations are better developed in advance. The absenteeism requirements do not appear to be entirely balanced due to the focus on protection of the employer. Yet it may be argued there is a contribution towards flexicurity objectives because of the stimulus provided for more optimal employability. The fact that the Krankenkasse (and conceivably the employer as well) may more forcefully require any medical treatment, sooner leads to recovery and restoration of employability or to clarity regarding the remaining ability to work, so that internal or external transitions could be applied earlier and in a better way.

The conclusion for German reintegration requirements is that for Schwerbehinderten there is a reliable and flexible contractual position, but for other occupationally disabled employees there is not, due to the lack of reliability. A balance does not appear to have been found, mainly due to the lack of an enforceable obligation to cooperate in reintegration activities for both employer and employee, outside of the circumstances of dismissal. For all occupationally disabled employees reintegration requirements contribute to optimal employability where, in my opinion, the Änderungskündigung in particular plays an important role. The latter leads to the conclusion that reintegration requirements in Germany contribute to the realisation of flexicurity objectives.

After assessment, an answer to the subquestion may be given. Each of the four elements of German reintegration law in turn feature elements contributing to the realisation of one or another flexicurity objective. For continued wage payment and control requirements it is considered a balance has been found in the rights and obligations between employer, employee and Krankenkasse. As far as absenteeism and reintegration requirements are concerned, the value mainly lies in the contribution towards optimal employability.

In law-making in the field of labour law or social security law, it should be ensured that insight is provided into the question of which values and principles play a part, which values and principles are not assigned a role, and it should be justified why certain values and principles outweigh others in a specific case. At the same time, it should be ensured that in law-making in the field of labour law or social security law, a flexicurity explanation is provided comprising a motivated description of the specific Common Principle of flexicurity which is served by the relevant legislation and regulation. If it appears that a particular instance of law-making serves none of the leading social law principles, is not committed to any flexicurity objective and/or tends to be disproportionately committed to one flexicurity objective, then a priority rule should be applied. This rule ensures either that legislation or regulations are designed differently or that a different balance is struck at principle level, so that a principle is observed and a flexicurity objective is served.

The legislator should conduct a fundamental debate on the legal basis for the obligation of the employer to pay wages in the event of occupational disability regardless of the reason why the employee became occupationally disabled. There are reasonable doubts as to whether this is still just and fair, and there are plenty of arguments to choose a system that distinguishes between professional risks and private risks. Conducting further research may be considered, regarding the option of having private risks covered by a sickness benefits savings scheme, in which the employee (on the basis of the principle of subsidiary responsibility) saves up so as to be able to bridge part of their sickness period in the event of occupational disability.

In the absence of regulation of occupational hazards, there should be cancellation of the restriction that only the Institute for Employee Benefit Schemes has the right to reclaim benefits if the liable employer has recklessly caused the damage intentionally or consciously. Article 99 of the Work and Income according to Labour Capacity Act should apply, rather than article 100 of this act.

Replace the lapse of entitlement to wages if the illness is intentionally caused by the employee with the violation of a prevention obligation, which means that the employee will lose their entitlement to wages if they do not prevent the occurrence of occupational disability. Such a prevention obligation should be interpreted in accordance with article 28 paragraph 1 of the Work and Income according to Labour Capacity Act: there should be a sufficient causal link between conduct and occupational disability and this conduct should be attributable to the employee.

Reduce the term of the continued wage payment obligation during illness to three months for companies employing up to 10, 15 or 25 employees and to one year for other employers. If this is not desired, introduce collectively financed SME compensation where, on request, companies employing up to 10, 15 or 25 employees may be compensated for a substantial part of the 70% wage payment obligation during illness.

Restrict the period in which employers are obliged to continue to pay 70% of wages during illness for all employers, where I plead for a period of either one year or of 13 weeks. This term should be accompanied by the provision that absenteeism due to the same cause within six months of termination of a previous sickness period does not create a renewed entitlement to continued wage payment during illness. After this period of continued wage payment, entitlement to sickness benefits is allocated, which may be recovered from the employer, should they not make sufficient reintegration efforts in the opinion of the Institute for Employee Benefit Schemes.

In the event of a new sickness period for the same employee, the employer who has continued to pay wages for a consecutive period of 104 weeks should, after a reduced waiting period, be entitled to the no-risk policy. In this case, the Institute for Employee Benefit Schemes pays out sickness benefits after this reduced waiting period, unless the employer is liable for the occupational disability under article 7:658 of the Dutch Civil Code.

Following on from the 2004 Autumn Agreement, there should be exploration of an option to reach agreements with social partners on the further reduction of collective agreement supplements to wages in the event of occupational disability. Only then does it make sense to consider a possible reduction of the continued wage payment percentage.

Make the early application for benefits based on the Income Provision Scheme for Fully Occupationally Disabled People less non-committal, so that the lack of sustainably usable opportunities is a given. Make it mandatory for the employee to apply for early benefits based on the Income Provision Scheme for Fully Occupationally Disabled People, in default of which their entitlement to continued wage payment during illness lapses, or compensate the employer, after a request to that effect, for an amount equal to the sum of the benefits based on the Income Provision Scheme for Fully Occupationally Disabled People to which the employee would have been entitled in the event of an early application, until the end of the waiting period.

Not only should the occupational physician be given the task of checking for the existence of initial occupational disability, but they should also formally do so at the end of the period of occupational disability. This, as well as more detailed rules on sickness reporting, may be incorporated into the control requirements.

The law should include an obligation for the employee to have occupational disability tested at the beginning and at the end.

The sanction of forfeiture of wages should apply for non-compliance with the control requirements without valid reason. In any event, the promptness requirement (article 7:629 paragraph 7 of the Dutch Civil Code) should be adjusted by replacing the word ‘prompt’ with ‘within a reasonable period of time’.

In the event of a procedure between employer and employee on the obligation to continue to pay wages during illness, the option of the Institute for Employee Benefit Schemes paying an advance to the employee based on the Sickness Benefits Act should be reintroduced with recourse to the employee or the employer, depending on the outcome of the procedure. The advance may be made subject to conditions such as payment only in case of a positive expert option for the employee.

It should be legally established that the employer is entitled to information on the suspected duration of absenteeism, to recourse as well as to information relevant to a responsible return to work, or to the correlation between occupational disability and working conditions, necessitating the improvement of working conditions by the employer.

It should be expressly determined that the employee is obliged to participate in the formation of an expert opinion requested by the employer.

Introduce a sanction for non-provision of the information to which the employer is entitled, and for non-participation in the formation of an expert opinion requested by the employer. In any event, non-participation in the formation of an expert opinion warrants forfeiture of entitlement to wages.

Rather than the current recovery requirement, a treatment requirement should be introduced in the Dutch Civil Code, analogous to article 28 paragraph 2 sub c of the Work and Income according to Labour Capacity Act, where ‘adequate’ should be understood to mean reducing the existence of occupational disability without reasonable grounds or a reduced ability to work.

In any event, amend the text of article 7:629 paragraph 3, opening lines and sub b of the Dutch Civil Code by adding ‘without reasonable grounds’ and replacing ‘recovery’ with ‘restoration or preservation of the ability to work’. Also facilitate the request for an expert opinion on this issue.

The Institute for Employee Benefit Schemes should update the Assessment Framework Policy under the Eligibility for Permanent Incapacity Benefits (Restrictions) Act as well as the Policy on the extension of continued wage payment under the Eligibility for Permanent Incapacity Benefits (Restrictions) Act on the basis of the developments since 2006, so as to respect its own view that it concerns dynamic documents here. In addition, the standards of the National Wage Sanctions Committee should be publicised in an easily accessible way, as should any other policies on reintegration conducted by the Institute for Employee Benefit Schemes.

The employer should no longer be obliged to arrange for external reintegration as well. In any event, it is desirable to also follow the order that is mandatory in labour law with respect to social security law: a return to agreed employment, when this proves impossible, a return to suitable employment internally and, only when this proves impossible, employment with a different employer.

In principle, the employer should be able to trust the opinion of an expert hired for occupational disability and reintegration, except if they see reason or should reasonably see reason to doubt this opinion. In a number of cases, the expert opinion of the Institute for Employee Benefit Schemes should become expert advice, where the Institute for Employee Benefit Schemes provides the employer and the employee with specific tips and suggestions regarding the next phase of reintegration. The cost of expert opinion should be reduced to €50 for the employee and €100 for the employer.

In the absence of an explicit agreement on new agreed employment, the employee should be able to rely on a rebuttable presumption. This presumption could be: the work performed by the occupationally disabled employee for at least six months, and of which the nature and scope are not disputed between the parties, is presumed to be the agreed employment. The employer may rebut this presumption, for example by disputing the permanence of the nature and scope of the employment or by proving that material reintegration efforts were made in this period.

Efforts should be made to simplify the financial incentive for the employer in the case of insufficient reintegration efforts. There may be consideration of replacing the wage sanction with a redress sanction.

The rules for the Institute for Employee Benefit Schemes on the imposition of a wage sanction should be tightened up. If the Institute for Employee Benefit Schemes is too late in deciding on an application for benefits based on the Work and Income according to Labour Capacity Act, the duration of the delay should be immediately deducted from the maximum term of the wage sanction. On the application form, the Institute for Employee Benefit Schemes should include an option for the employee to request the imposition of a wage sanction. If a wage sanction is imposed, the Institute for Employee Benefit Schemes should mention in the decision that there may be situations in which the employer is not required to pay wages in the wage sanction period after all. In the wage sanction decision, the Institute for Employee Benefit Schemes should indicate more precisely than is currently the case how the employer may rectify their shortcoming.

If the employer has rectified their shortcomings in terms of reintegration, the obligation to continue to pay wages should terminate, in any case as of the moment the Institute for Employee Benefit Schemes grants their reduction request. By deleting article 25 paragraph 14, first sentence of the Work and Income according to Labour Capacity Act, the current six-week ‘extension period’ disappears. If this is not opted for, the delay period should be deducted from the wage sanction period, in case the Institute for Employee Benefit Schemes is late in making a negative decision on a reduction request. In addition, a reduction request should be granted if the employee becomes absent again, and if it is unclear whether they will have the capacity to work again within a reasonable period of time.

In the event of unlawful wage sanction decisions, the Institute for Employee Benefit Schemes should be obliged to compensate the employee or employer for more losses than is currently the case.