Rules for employers regarding sick employees

Only necessary information

The GDPR gives you the space to record the necessary information about your sick employees. The nature and cause of an illness are not considered necessary information. Health data are a special category of personal data. The processing of special categories of personal data is usually prohibited. That is why you are not allowed to ask for it.

In addition, your employees are under your authority. This may make them more likely to feel obliged to share information about their illness if you ask, even if you do everything you can to not make it feel that way for your employees.

Of course, it is understandable that as an employer, you want to know whether someone is going to be off sick for only a short time or longer. But you do not need any health data for that. The occupational health and safety service or company doctor can inform you of the anticipated duration of an illness and your employee’s work capacity.

Note: Even if your employees themselves tell you what is wrong with them, you are not allowed to record or share this information, or use it to form an opinion about the employability of your employee. Only the occupational health and safety service or company doctor is allowed to do this. Of course, you can offer your employee a listening ear.

Employee consent does not apply

Even if your employee gives you permission to record what is wrong with them, you are not allowed to do so. Your employee is (financially) dependent on you and may therefore feel obliged to give consent. Therefore, consent can never be ‘free’, as required by law.

Only in highly exceptional cases may you record and share data about the nature and cause of the illness with those directly involved, based on your employee’s explicit consent. For example, if your employee suffers from a serious degree of diabetes or epilepsy. In that case, it may be necessary for close colleagues to be aware of this, so they know what to do if your employee is not feeling well. Your employee can also report this via the company doctor or occupational health and safety service.

What you are allowed to ask

When an employee calls in sick, you may only ask and register what is necessary for you as an employer to know. This is information that allows you to determine how to proceed with your employee’s tasks and to assess whether you must continue to pay wages. You are therefore allowed to record that information.

You are allowed to register the following information about your sick employee:

• The telephone number where your employee can be reached and the (nursing) address.
• How long your employee thinks the illness will last.
• Your employee’s current tasks and appointments.
• Whether the employee’s illness is related to an accident at work.
• Whether it concerns a traffic accident with a right of recourse (right of recovery). This means you may be able to recover the costs of absenteeism due to illness and rehabilitation from the person who caused the accident.
• Whether your employee falls under 1 of the 4 safety net schemes by virtue of the Sickness Benefits Act. Your employee is not always obliged to report which scheme it concerns.

Checking emails

You are also allowed to check the business email of your sick employee, if necessary. For example, if your sick employee is unable to provide a complete handover of all ongoing tasks.

Note: Do not read private emails. If the title of a message indicates the email is personal, you, the employer, are not allowed to read that message, even if it is in the business mailbox.

If no clear distinction can be made between business and private emails, you may accidentally open a private message. You must close such a message immediately.

It is advisable to inform your employees that their email can be checked when they are off sick.

Safety net scheme Sickness Benefits Act

You continue to pay the salary of your sick employee. But sometimes, you can claim a sickness benefit from the Employee Insurance Agency (Dutch: UWV). This is regulated in the safety net schemes of the Sickness Benefits Act.

Your sick employee does not have to tell you which safety net scheme they fall under. A safety net scheme says something about the nature of a person’s illness. Your employee only needs to share this information with the occupational health and safety service or company doctor.

There are two exceptions to this rule:

• the no-risk policy;
• the Compensation scheme for older employees.

If you ask your employee whether they may fall under one of these two schemes, they are obliged to inform you about this. This obligation only applies once the employee has been employed for two months or longer. You can find this in Article 38b of the Sickness Benefits Act.

Informing colleagues

Although you are not allowed to ask, many employees themselves explain why they call in sick. Understandably, you want to share that information with your closest colleagues out of a sense of involvement. But what exactly your sick employee wants to share about their situation remains up to them.

Of course, you may inform your immediate colleagues about the expected duration of the absence. You can also simply ask your sick employee what they want you to tell their closest colleagues. Furthermore, you can tell the other employees that it is up to the sick employee to share more information.

In any case, it is important that your sick employee does not feel pressured in any way to share information with you and their colleagues.

Checking whether the employee is sick

You yourself are not allowed to check whether your employee is indeed sick. You can, however, ask the occupational health and safety service or company doctor to do this for you but you are not allowed to invade someone’s privacy more than necessary.

For example, you can specify that sick employees must be home at certain times, allowing the occupational health and safety service or company doctor to call or visit. You can also demand that your sick employee come to the surgery of the occupational health and safety service or company doctor, if that is possible.

However, you cannot demand that your employee stay at home all day, for example. You are also not allowed to have the occupational health and safety service or company doctor visit the employee every day if this is not necessary.

Further checks

In exceptional cases, you can have a more detailed check carried out if your employee has called in sick. By a detective agency, for example. You must have a compelling reason for this, such as indications that your employee is working somewhere else while they have called in sick and you continue to pay their wages.

Functional limitations and capabilities

You can talk to your sick employee about the employee’s functional limitations and capabilities, but only if diagnosed by a company doctor. Based on this, you can discuss with your employee how this affects their work and how to further shape their rehabilitation.

Role of the works council

If, as an employer, you want to establish, change or withdraw a protocol regarding absenteeism due to illness or rehabilitation, you must first ask the works council for consent. For example:

• to choose an occupational health and safety service;
• for concluding and changing the contract with the occupational health and safety service;
• for the absenteeism policy (including how you as an employer carry out absenteeism checks).