Introduction
In principle, an employee who is sick is entitled to continued payment of wages. But this right has limits. If an employee falls ill intentionally, wages may be forfeited. In practice, however, it is difficult to determine whether there is intent. In this blog, we explain how judges deal with this and where exactly the limit lies.
Intentionally getting sick: what does labor law say?
By law, there is no right to wages when an employee intentionally caused his illness. This sounds obvious, but in practice it is difficult to prove. Intent requires that the employee knowingly acted with the purpose of getting sick. That bar is high.
Intent is more than recklessness
Conduct that is unwise or risky is not the same as intentional. Judges apply a strict interpretation of the term. For example, the purpose of the conduct must have been explicit: to get sick in order to avoid working. In almost all known cases, it appears that this form of intent is rarely assumed.
Case law examples
There are several examples where employers tried to prove that an employee had intentionally fallen ill: unsuccessfully.
For example, there was an employee who continued to engage in indoor soccer despite repeated warnings, sustaining multiple injuries. Yet the judge found this was not intentional. Similarly, an employee who sustained injuries while experimenting with gunpowder was not deemed intentionally ill.
The same principle applies to medical procedures. Even if recovery is foreseeable, the right to wages usually remains. Consider gender reassignment surgery: it is not considered an intentionally caused illness. Only in the case of a purely cosmetic surgery, which is not medically necessary and leads to sick leave, wage continuation may lapse.
Complications following medical treatments are usually classified as ordinary illness and do fall under the obligation to continue to pay wages.
Conclusion
Continued payment of wages during illness is the basic principle in labor law. Only in exceptional cases, where the employee has demonstrably fallen ill intentionally, can this be deviated from. Employers wishing to invoke this must come up with very strong evidence. For employees, this means that risky behavior or voluntary medical choices usually do not result in lost wages.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about illness. Please feel free to contact us .
April 2025
