Introduction
Can an employer decide for themselves whether an employee is truly sick? The answer is clear: no. Only a company physician or occupational health physician has the authority to determine whether an employee is unable to work. Yet employers still regularly make mistakes in this regard. A recent ruling by the subdistrict court in Nijmegen underscored this once again.
Only the company physician assesses illness
In a recent dismissal case, an employee was fired because she attended two events while on sick leave: a Japanese market and a car show. The employer considered this incompatible with being sick. However, the judge ruled that it is not up to the employer to assess whether someone is actually sick. That is the exclusive responsibility of the company physician.
The employee had properly reported sick, and as long as the company doctor does not declare the sick leave invalid, the employer must accept it. Therefore, the employer is not permitted to make its own judgment about an employee’s health.
What are the rules regarding reporting sick leave?
Although these rules have been in place for a long time, they are still frequently applied incorrectly in practice. The key principles are:
- The employee reports sick in accordance with the procedures established by the employer, for example, by phone before the start of the workday
- There is no requirement to submit a medical certificate from a general practitioner or specialist
- An employer may not reject a sick leave report based on its own judgment
- If in doubt, the employer must consult a company physician or occupational health physician
Only after an independent physician has examined the employee can it be determined whether the employee is unable to work. Until that time, the sick leave notification is considered valid.
Why is this approach important?
When an employer independently draws conclusions about an employee’s illness and takes action based on those conclusions—for example, by suspending pay, refusing to facilitate a return to work, or even proceeding with termination—the employer is acting in violation of labor law. This can have far-reaching consequences:
- The court may overturn the termination
- The employer may be ordered to continue paying wages retroactively
- Compensation may be awarded for wrongful conduct
In the Nijmegen case, for example, the employer had not consulted with a doctor. That proved to be the deciding factor: the judge ruled that the sick leave had to remain in effect and that the termination was unjustified.
Conclusion
The assessment of illness is the sole responsibility of a qualified physician, not the employer. Even if a situation raises questions—for example, because the employee is seen out and about—the employer may not conclude on its own that the employee is not sick. Only an occupational physician can determine whether an employee is unable to work. By acting with due care and following the proper procedure, legal risks are minimized and conflicts are prevented.
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 assist you if you have any questions about monitoring during sick leave. Please feel free to contact us .
April 2025