The situation

An employee requests two weeks of annual leave. You approve the request and take the absence into account when planning your workforce.

A few days into the holiday, the employee reports sick from their holiday destination. They maintain that the days of illness should not be deducted from their annual leave balance.

Are they right? And what are the respective rights and obligations of employers and employees in this situation?

The legal issue

As a general rule under Dutch employment law, sickness takes precedence over holiday. If an employee becomes incapacitated for work during a period of annual leave, those days are, in principle, not regarded as holiday. This reflects the purpose of annual leave: employees should have a genuine opportunity to rest and recover from work.

There is, however, an important exception. Pursuant to Article 7:638(8) of the Dutch Civil Code, statutory annual leave days may only be deducted during a period of sickness if the employee has given their explicit consent. Different arrangements may apply to contractual or additional (non-statutory) leave, for example under a collective labour agreement or a written employment agreement.

A sickness notification during a holiday does not mean that an employer must simply accept it without question.

Even if an employee reports sick while abroad, the employer is entitled to verify whether the applicable sickness reporting procedures have been followed. That right is subject to clear limits. An employer may not ask about the employee’s medical condition or diagnosis. The assessment of an employee’s incapacity for work is reserved for the occupational health physician or occupational health service.

Employees are, however, expected to comply with reasonable control measures.

These may include reporting the sickness immediately, informing the employer of their place of stay, remaining available for contact and, where appropriate, consulting a local physician. Failure to comply with reasonable sickness reporting and control procedures may have consequences under employment law.

What does this mean for your business?

Good preparation helps prevent disputes.

Ensure that your sickness absence policy clearly sets out what employees are expected to do if they fall ill during a holiday, whether in the Netherlands or abroad.

In addition, verify whether a collective labour agreement (CLA) applies to the employee concerned. Many CLAs contain specific provisions regarding sickness during annual leave or the treatment of additional (non-statutory) leave.

Furthermore, do not automatically deduct days of sickness from an employee’s annual leave balance. If you wish to designate statutory leave days as annual leave during a period of sickness, first obtain the employee’s explicit consent and record that consent in writing.

Finally, maintaining an accurate leave administration is essential. Employers are required to inform employees in good time before their statutory leave entitlement expires. Doing so not only prevents statutory leave from lapsing, but also helps avoid unnecessary disputes regarding annual leave administration.

Questions for employers

• Does your sickness absence policy clearly explain what employees must do if they fall ill during their holiday?
• Do you know whether a collective labour agreement applies to your employees and whether it contains additional rules on sickness during annual leave?
• Do you always obtain an employee’s explicit consent before deducting statutory leave days during a period of sickness?
• Is your leave administration organised in such a way that employees are notified in good time before their statutory leave entitlement expires?

In conclusion

A sickness notification during a holiday may appear to be an exceptional situation, but in practice it frequently gives rise to disputes.

Clear policies, an up-to-date sickness absence policy and accurate leave administration will help prevent uncertainty and disagreements.

If you are unsure whether your employment conditions, sickness absence policy or annual leave arrangements comply with current Dutch employment law, the specialists at ACG International will be pleased to assist you.