Introduction
An employee who is sick is, in principle, entitled to continued pay. However, this right has its limits. If an employee feigns illness, the right to continued pay may be forfeited. In practice, however, it is difficult to determine whether there was intent. In this blog, we explain how courts handle this issue and where exactly the line is drawn.
Faking Illness: What Does Labor Law Say?
Under the law, an employee is not entitled to wages if he or she intentionally caused his or her own illness. That sounds clear, but in practice it is difficult to prove. Intent requires that the employee acted knowingly and willfully with the aim of becoming ill. That is a high bar to clear.
Intent is more than just recklessness
Behavior that is unwise or risky is not the same as intentional behavior. Judges apply a strict interpretation of the concept. For example, the purpose of the action must have been explicit: to get sick in order to avoid having to work. In virtually all known cases, it appears that this form of intent is rarely accepted.
Examples from case law
There are several examples in which employers tried to prove that an employee had intentionally feigned illness—but without success.
For example, there was an employee who, despite repeated warnings, continued to play indoor soccer and sustained several injuries as a result. Nevertheless, the court did not find this to be intentional. Similarly, an employee who sustained an injury while experimenting with gunpowder was not deemed to have become ill intentionally.
The same principle applies to medical procedures. Even if recovery is expected, the right to pay usually remains in effect. Consider gender reassignment surgery: it is not considered an intentionally induced illness. Only in the case of a purely cosmetic procedure—one that is not medically necessary and results in an absence from work—may continued pay be discontinued.
Complications following medical treatment are generally considered ordinary illnesses and are covered by the obligation to continue paying wages.
Conclusion
Continued pay during sick leave is the basic principle under labor law. Deviations from this principle are permitted only in exceptional cases where the employee can be shown to have intentionally caused their own illness. Employers who wish to invoke this exception must provide very strong evidence. For employees, this means that risky behavior or voluntary medical decisions usually do not result in a loss of pay.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to help you if you have any questions about sick leave. Please feel free to contact us .
April 2025