On 22 December 2015, Minister Asscher submitted a legislative proposal to require employers to take measures to prevent employees from becoming ill and to re-integrate sick employees. The legislative proposal provides for, amongst other things, (i) a right of consent of the works council or employee representative body in relation to the company’s health and safety officer, (ii) the employee’s right to a second opinion on the company doctor’s advice, and (iii) the anchoring in Dutch statutory law of the employee’s right to consult the company doctor in situations outside illness.
At the moment, the Dutch Working Conditions Act already requires the employer to prevent illness at the workplace. According to the Minister, however, in practice employers only take action once an employee reports ill. The Minister also has concerns about the independence of the company doctor with respect to the employer. The legislative proposal aims at changing this.
Right of consent for the works council in relation to the health and safety officer
One of the key measures the Minister wants to introduce, is to strengthen the health and safety officer’s position by giving the works council a right of consent in relation to the person of the health and safety officer. Employers currently are already required to designate a health and safety officer within the organisation. The health and safety officer assists the employer with all the duties required to implement the Working Conditions Act, such as the preparation of the identification and risk assessment. The health and safety officer is currently already subject to a prohibition of termination of employment. The legislative proposal makes the appointment of the health and safety officer subject to the right of consent. This means that if the works council does not grant its consent for the nominated employee to be named health and safety officer, the only option that is left for the employer to get this particular employee nominated is to ask the court for permission to appoint the employee concerned. In practice, we see that few employers have a health and safety officer. It is possible that the legislative proposal, once enacted, will change this practice.
Second opinion for the employee
The legislative proposal also provides for employees to be able to ask the company doctor for a second opinion from another company doctor. This second opinion must be paid for by the employer. The second opinion from a second company doctor must, moreover, be distinguished from the UWV’s expert opinion, which aims to smoothen the reintegration process in case of a stagnation during the first two years of illness (because of a difference in opinion, for example) and can be requested by either the employer or the employee. The company doctor must in principle honour a request from an employee for a second opinion, unless there are serious reasons not to do so, for instance if there is no reason whatsoever to do so. It is remarkable that the employer itself does not have the possibility of asking for a second opinion. In our view this is a missed opportunity since we see in practice that not only employees, but also employers are dissatisfied with the (sometimes unclear) advice from the company doctor. It is also remarkable that the number of second opinions that an employee may request, is not capped, which can result in an employee subjecting every company doctor's advice to a second opinion. If the possibility of a second opinion is not provided for, the regulator can impose a demand for compliance on both the employer and the company doctor. An administrative fine of, at most 82,000 euros can be imposed on the company doctor.
Consultation company doctor by an employee who is not ill
The legislative proposal gives employees the right to consult the company doctor anonymously about health questions relating to work, before health problems cause them to be absent through illness. These costs are at the employer’s expense. The employer can be called to account in this respect and can even have imposed an administrative fine of, at most 82,000 euros. In our view it is remarkable that the employer is responsible for the prevention of illness, but is not notified of the outcome of a consultation with the company doctor of, for example, an employee who is not yet absent through illness, but is struggling with health problems. We consider this a point that could be further discussed during the debate on the legislative proposal.
We can see that the legislative proposal increases the obligations of both the employer and the company doctor in relation to preventing illness. It is remarkable that the employee’s role in prevention is hardly addressed at all, while some of the prevention of illness is the employee’s responsibility (after all, it is the employee who first experiences health problems, without the employer necessarily noticing this straight away). It is possible that the employee’s role in preventing illness will be addressed during the parliamentary debate on the legislative proposal. It is clear that if the legislative proposal will enter into force in this way, employers will have to get to work on preventing illness among their employees.