Burnout in the workplace: what are your rights?

Burnout can happen to anyone and almost always leads to disability for work. To start with, it is obviously important to get the necessary medical help and focus on recovery. Discussions with your employer often do not help recovery and is therefore something you definitely want to avoid. It is important to be aware of your rights and obligations during sick leave.

Work related health complaints

Tension at work can have a negative effect on your health and lead to burnout symptoms. Consider, for example, long-term overwork, which is a regular occurrence in today’s tight labour market. This often leads to additional pressure on staff members.

It may also be the case that you have a conflict with your manager or a colleague. As a result of which you experience stress symptoms and are unable to perform your duties (fully).

Your employer has a duty of care. Dutch law stipulates that an employer must observe good employment practices. This means that the employer is obliged to create a good working situation for the employee, i.e. a healthy and safe workplace with decent equipment, decent working hours with breaks and the right to holidays.

Burnout in Dutch employment law

In Dutch employment law, the Working Conditions Act (Arbowet) is of great importance when it comes to protecting employees against health risks, including burnout. The Working Conditions Act obliges employers to create and maintain a safe and healthy working environment. For example, the Act includes provisions on taking breaks and the maximum working hours an employee can work per week. The prevention of psychosocial workload, such as stress and burnout, also falls under the employer’s duty of care. No distinction is made in this respect. After all, something may manifest itself physically in some people, while mentally in others.

Steps to take during sick leave

If you are experiencing burnout symptoms and can no longer perform your duties, it is advisable to call in sick. You can do this by sending your employer a message. Perhaps your employment contract or a staff handbook contains more specific instructions on calling in sick. In any case, you do not have to give a reason for your illness when reporting sick.

It is up to your employer to then involve the company doctor to assess your incapacity for work. The company doctor is not a doctor who gives you medical treatment. They advise you and your employer about your incapacity for work, the expected duration, the extent to which you can or cannot perform your duties and also whether there are any actions that can stimulate your return to work.

Failure to cooperate with a consultation with the company doctor is an obligation of you as an employee. Not being available to the company doctor, not showing up at the consult or not following their advice, can be considered a violation of reintegration obligations. This can lead to consequences on your salary payments.

Salary payments during sick leave

Under Dutch law, an employee is entitled to continued payment of salary during 104 weeks of illness. By law, this must be at least 70% of your salary and at least the minimum wage. This rule may be deviated from in the employee’s favour. For example, many employers have agreed with their employees to continue paying 100% of the salary in the first year of illness and 70% of the salary in the second year. However, this is not an obligation.

Your employment contract, an employee handbook or, if applicable, a collective labour agreement stipulates provisions on the extent your employer pays salary during illness.

Can your employer terminate your employment during sick leave?

In principle, a prohibition to terminate your employment contract applies during sick leave. This means that your employment contract may not be terminated, unless the termination is not related to your illness. This is often difficult for employers to prove. Therefore, the prohibition on termination during illness is interpreted broadly. This prohibition applies if you are partially working and partially on sick leave. In other words, as long as you have not made a full recovery.

After reaching 104 weeks of illness, your employer no longer has to pay your salary and can terminate your employment due to long-term illness. It must then be established that your employer has fulfilled its reintegration obligations and that no recovery is expected in the next 26 weeks.

What if your employer does not support you?

If your employer does not take your burnout seriously, note that it is up to the company doctor to assess this and advise. This means you cannot be obliged to reintegrate until the company doctor advises it. If your employer does not want to comply with the company doctor’s report, it is wise to seek legal advice.

If you disagree with the company doctor’s advice, you can request a second opinion from another company doctor or an expert opinion from the Employee Insurance Agency (UWV). 

Reintegration after burnout

During your sick leave, you must remain available to your employer (unless the company doctor explicitly advises that this is not in the interest of your recovery) and must cooperate in drawing up a reintegration plan. It is possible that you can start with reintegration for a few hours and as part of this you will be given modified work by your employer. This should always be in accordance with the advice of the company doctor.

During reintegration, the first step is to see if suitable work can be found or organised for you with your current employer. This could be a part or all of your current job, but other work with your employer can also be considered. This is called the first track of reintegration.

Within this first track, the possibilities of adapting your work, making adjustments to your workplace, partially resuming your work or scheduling your shifts at different times are considered. These possibilities are included in the Action Plan for your reintegration.

In the second year of sick leave, the so-called second track programme begins. In the second track, the focus is not only on returning to your current employer, but also on other suitable positions outside the organisation.

More information

Do you want to understand your obligations during sick leave better? Does your employer want to terminate your employment during sick leave? Or does your employer not fulfill its reintegration obligations? Please contact us. We will be happy to advise you.