Employer liable for errors by company doctor

Until fairly recently, it was presumed from case law emerging from the lower courts that an employer was not liable for errors made by a company doctor. An employer could depend on the doctor's opinion so long as he had no reason for doubt. The Central Appeals Tribunal has called a halt to this development in case law.

'Poortwachter' test
To qualify for benefit under the WIA (the law on work and income according to working ability) an employee who has been incapacitated for two years is required to submit an application in the 91st week of their illness. On the basis of the so-called 'poortwachter test', UWV then determines whether employer and employee have been able to agree upon efforts aimed at re-integration.

Salary sanction
Where UWV finds that an employer has, without justification, failed to satisfy obligations concerning re-integration or has invested too little effort in this area UWV imposes a sanction involving continued payment of salary. The obligation to continue paying the employee's salary while they are sick is extended for one year. If during this period the employer believes he has resolved these shortcomings, he can apply to UWV for this sanction to be of shorter duration.

Policy rules
In assessing the re-integration effort undertaken by both the employer and the employee UWV applies its own policy rules (Beleidsregels beoordelingskader poortwachter). The rules outline that, even though an employer is legally required to involve an employment welfare service or a company doctor in managing sickness-related absenteeism and the re-integration of employees who have been sick, the final responsibility for this rests with the employer. UWV's policy rules state, "The involvement of a certified employment welfare service or designated company doctor does not mean that the employer is simply allowed to hide behind the assessment".

Court rulings
In what is more or less a departure from these policy rules, a number of courts have over the last few years ruled that during the waiting period of the first two years of an employee being off sick an employer may in principle base his judgement on the expert and medical opinion of an employment welfare service. The reason for this is that the employer is obliged to call in an employment welfare service. While it must be a certified service, the employer does not possess the expertise to verify the medical opinion of said service. Nor, according to the law, is the employer responsible for the judgement of the employment welfare service. An employer may only depart from the service's opinion if on the basis of concrete indications he has solid grounds for doubting its judgement.

Central Appeals Tribunal
In two recent decisions the Central Appeals Tribunal has broken with this trend. In both cases  employers claimed there were justifiable reasons for shortcomings determined by UWV as they should reasonably be able to rely upon the opinions of the company doctors they had engaged. The Central Appeals Tribunal agreed with UWV that responsibility for re-integration lies with the employer. When a salary sanction is imposed on an employer, the underlying cause of inadequate attention having been paid to re-integration is due to the employment welfare service or the company doctor. In this event, the employer can hold the relevant service provider accountable under civil law.

Tip
For you as an employer, these rulings once again confirm that you must keep your finger on the pulse during the re-integration of your sick employees. In the case of there being the smallest element of doubt it is also advisable to request an expert assessment by UWV or to consult an expert on employment provisions. In this way you reduce the chance of you proceeding on the basis of an inaccurate judgement by the employment welfare service. Should that occur, however, you can claim for civil liability against the relevant service provider. Cases of this kind involve considerable time and money; prevention is therefore better than cure.