The Working after the State Pension Age legislative proposal was adopted by the Upper House of the Dutch Parliament on 29 September 2015. It enters into force on 1 January 2016. The new Act will significantly restrict the obligation to continue the wage payments of a sick employee when he or she reaches the state pension age (in 2016: 65.5 years). Other obligations in relation to old age pensioners will also be relaxed.
Compulsory sick pay
Employers are obligated to continue to pay 70% of a sick employee’s wage (subject to a maximum of 70% of the maximum daily wage*) for a period of 104 weeks. The compulsory sick pay period will be limited to 13 weeks in the case of sick old age pensioners. If an employee is already sick when he or she reaches the state pension age, the 13-week period commences on that day. The total compulsory sick pay period can in no event exceed 104 weeks.
(* The maximum daily wage is a statutory maximum amount, determined by the government per 1 January and 1
July of each year. As of 1 July 2015, the statutory maximum daily wage is € 199.95; on a monthly basis, 70%
thereof amounts to € 3,044 gross).
13 weeks to become 6 weeks?
The government has set out a six-week period in the legislative proposal. It has been regulated in an amendment that that period will be extended to 13 weeks temporarily, for at least two years. The amendment provides that the government must take a number of steps before it can determine the date as from which the six-week period will commence. It will not have to evaluate the Act until two years after it enters into force, for instance. Employers must therefore take into account a compulsory sick pay period of 13 weeks at least during the first 2 or 2.5 years after the Act enters into force. The six-week period cannot enter into force without an express further announcement from the government.
Transitional law
A transitional arrangement will apply in the event of ongoing sickness to employees who (a) are sick before the Act enters into force; and (b) are old-age pensioners before the Act enters into force or will become old-age pensioners within six months thereafter:
• the employer must continue the wage payments for a period of six months
after the Act enters into force;
• the 13-week period will commence after those six months; and
• in both cases the compulsory sick pay period can in no event exceed 104 weeks.
Ongoing sickness includes a situation in which a sick employee calls in sick again within four weeks after returning to work.
Ban on termination during sickness
The ban on termination due to sickness applies during the first 104 weeks of sickness. That period will be limited to 13 weeks in the case of a sick old age pensioner. If the employee is already sick on the day on which the state pension commences, the ban on termination expires 13 weeks after that day. The ban on termination will in no event last longer than a total of 104 weeks.
Two years after the Act enters into force the government may reduce the 13-week period to 6 weeks, as described above with regard to the compulsory sick pay
Transitional law
The transitional law on the ban on termination is the same as that which applies to the compulsory sick pay:
• the ban on termination during sickness will continue to apply for a period of six months after the Act enters into force;
• the 13-week period will commence after those six months; and
• in both cases the ban on termination can in no event last longer than a total of 104 weeks.
Reintegration obligations
An employer has limited reintegration obligations towards a sick old-age pensioner. The employer is not required to draw up an action plan or to investigate reintegration possibilities in the second track (suitable work at another
employer).
Rules on the succession of fixed-term employment contracts
The “ketenregeling” (rules on the succession of fixed-term employment contracts: a maximum of three contracts in a maximum of two years) will be relaxed. If fixed-term employment contracts are entered into after the employee has reached the state pension age, the employer can enter into a maximum of six employment contracts with the old-age pensioner within a maximum period of four years without an open-ended employment contract arising. The succession of employment contracts recommences after an interruption of more than six months.
Statutory notice period
The statutory notice period that the employer must observe will be reduced to one month if the employee has reached the state pension age. If the statutory notice period has been departed from in writing, the contractual notice period will continue to apply, however.
Sickness benefits
Sick old-age pensioners who are not entitled to compulsory sick pay, or only for less than 13 weeks, will become entitled to sickness benefits for a maximum period of six weeks. This applies, for instance, to agency workers to whom a temporary employment clause applies or to employees whose fixed-term employment contracts end during the compulsory sick pay period. The sickness benefits will be recovered from the employer, because the employer does not pay any employee insurance premiums for this category of employees.
Changing of number of working hours; minimum wage; reassignment period
Old-age pensioners will not have the right to change their number of working hours. They will be entitled to the minimum wage, however. If an employer wishes to dismiss an old-age pensioner on the reasonable dismissal grounds of longterm sickness or regular sickness, the period within which the employer must demonstrate that the employee will not recover and cannot perform modified duties will be reduced to six weeks.