Sick leave and vacation; what’s the deal?

Suppose you have booked a vacation, but you become ill just before or during your vacation. Can the holidays then still be deducted from the vacation balance? And what about the employee who does not take any vacation during sick leave – do his/her holidays then expire over time? Both of these questions were clarified by the Supreme Court late last year.

Taking vacation during illness

As a basic principle, statutory holidays expire six months after the calendar year in which the entitlement is accrued, unless the employee was not reasonably able to take any holidays.

The Supreme Court has clarified that this “unless exception” applies if an employee is unable to reintegrate. The rationale behind this is that holiday is for recuperation; a long-term sick employee who is unable to reintegrate has no need for recuperation. So the expiration period does not apply in that case.

However, if a sick employee is able to reintegrate, then he is also considered able to take holidays. Reintegrating employees do need recuperation, which justifies the short expiration period.

Offsetting sick days against an already established vacation

But what about the situation in which the vacation has already been set, and the employee falls ill at a later time (prior to or during the holiday)? This was the issue addressed before the Supreme Court: The employee had asked his employer if he could go on a five-week tour through Norway with his camper during the summer. This request was approved but the employee reported sick a month later. A week before going on holiday, the employee was seen by the company doctor. The latter determined that the employee was unfit for his own work and other work. The employee confirmed to the company doctor that he nevertheless intended to go on his approved vacation, and he also reported this to his supervisor. Subsequently, the employer deducted 29 holidays of the outstanding holiday balance. Wrongly, according to the Supreme Court ruling.

Based on Dutch employment law, sick days cannot qualify as holidays unless the employee consents or has agreed to this by written agreement. The Supreme Court has clarified that for the question of whether sick days can be set off against holidays, it is irrelevant whether the employee is able to reintegrate. Even if such is not the case, the set-off can take place. The only requirement is that the employee has given consent, or that it has been agreed in writing:

  • Consent: The consent must be explicit and specific. It is not sufficient that an employee who falls ill before holiday notifies his company doctor and/or his supervisor that he wants to go on holiday, as was the case in the Supreme Court case. Consent is possible for both statutory and above-statutory holidays.
  • Written agreement: This can also be done by collective bargaining agreement. A written agreement is only possible regarding above-statutory holidays.

TIP! Thus, if an employee has established a holiday before becoming ill, you as an employer must explicitly ask the employee’s consent to write off holiday days during illness.