Self-insuring employers, take note!
Most employers are aware that an employee can report sick to the UWV, but an employee can also report sick retroactively. The UWV is required to investigate such a sick note. Filing a retroactive sick note, however, does not always guarantee that the employee will be granted a sickness benefit (Ziektewet, or ZW, benefit). This is because a number of conditions must be met to qualify for a ZW benefit. These conditions were reaffirmed in a recent ruling by the District Court Noord-Holland.
ECLI:NL:RBNHO:2023:13389
The person concerned received unemployment benefit (WW) from January 2020 to September 2020. Two years later, in February 2022, he claimed that he had in fact already been ill from 1 January 2020 onwards, and had been entitled to a ZW benefit from that point. On his first day of illness, he was insured under the Sickness Benefits Act (ZW) on the basis of his WW benefit. As a result, the UWV was required to assess this sick note, despite it being filed two years later.
The District Court Noord-Holland held that, while a retroactive sick note is possible, the person concerned bears the risk if his medical situation can no longer be fully reconstructed or proven afterwards because of the late notification. For this individual, that meant he did not have sufficient medical information to support his sick note. He was therefore refused a ZW benefit.
What does this mean for the (self-insuring) employer?
An employee qualifies for a ZW benefit if they were insured under the Sickness Benefits Act at the moment they fell ill. Under Section 20 ZW, this applies where the employee is employed by an employer, receives a benefit from the UWV as referred to in Section 7 ZW, or – under Section 46 ZW – within four weeks of that insurance ending. Importantly, when assessing insured status, what matters is not the date of the sick note, but the date on which the employee actually fell ill.
Under Section 38ab ZW, the general rule is that the sick note must be passed on to the UWV no later than the second day of illness. If an employee does this too late, the UWV can impose a sanction. Under Section 2(1)(a) of the Social Security Sanctions Decree, the default sanction is a 5% reduction of the benefit amount for one month.
Have you dealt with a sudden, retroactive sick note? Please feel free to contact our employment lawyers.
