The Working Conditions Act
Good working conditions contribute to job satisfaction, help reduce work-related risks and prevent sickness absence. The starting point for an optimal working conditions policy is the Working Conditions Act. The law applies to all employers and employees in the Netherlands and centres on personal responsibility. Both employers and employees have statutory obligations that they must fulfil.
Legislation on working conditions is divided into three levels: the Working Conditions Act, the Working Conditions Decree and the Working Conditions Regulations. The Working Conditions Act forms the legislative basis; it does not contain any specific rules. The Working Conditions Decree lays down the rules to which employers and employees must adhere in order to prevent work-related risks. The Working Conditions Regulations describe the specific regulations.
The Act focuses on:
- The general provisions regarding a company's working conditions policy.
- Promoting good working conditions.
- Preventing illness and incapacity for work.
The Dutch Working Conditions Act describes that you and your employee have shared responsibility for improving working conditions. Together you work on a healthy and safe work environment. Should an employee be taken ill nonetheless, then they and you must do everything possible to rehabilitate your employee responsibly as soon as possible.
In order to avoid penalties, you must comply with all obligations under the Working Conditions Act. Read more now about your obligations under the Working Conditions Act: the services you must obtain from an occupational health and safety service provider, the basic contract, what you must do if an employee reports sick, the statutory tasks of the company doctor, the risk assessment, the Preventative Medical Examination (PME), and the prevention worker.
The occupational health and safety service
As an employer, you are required to have an agreement with an occupational health and safety service provider; the basic contract. This agreement contains the minimum arrangements concerning the service provisions. As an employer, you are required by law to purchase the following services from an occupational health and safety service provider:
- Absence management.
- Reviewing your risk assessment , if you carry it out yourself. However, if you have fewer than 25 employees and can make use of a recognised risk assessment instrument, the review is not mandatory. In all other cases it is.
- The Preventative Medical Examination (PME).
- The pre-employment medical examination, if applicable for your company.
- The working conditions consulting hour or walk-in surgery hours.
The Works Council or Employee Representation Body has the right of consent in the selection of an occupational health and safety service and prevention worker and in adopting the working conditions policy. In this way, you involve employees in your company's working conditions policy and create support for the selected occupational health and safety service and prevention worker.
If an employee reports sick, you as an employer must report the sickness notification to your occupational health and safety service within one week at the latest. The sooner the better. The company doctor writes the Problem Analysis no later than in the sixth week of absence. If your employee has not been reported fit for work again after 42 weeks of absence, you must report them to the UWV employee insurance agency. If your employee has not returned to work (in full) after 91 weeks, you must provide a rehabilitation report in order to apply for WIA benefit.
If you have an ArboNed subscription, your regular contact, the rehabilitation and prevention advisor or process director (the case manager) will coordinate the rehabilitation process. In this way you will always comply with your statutory obligations under the Eligibility for Permanent Invalidity Benefit (Restrictions) Act.
The Eligibility for Permanent Invalidity Benefit (Restrictions) Act prescribes that in the event of (long-term) sickness absence, active supervision of the employee starts from the first day of illness. As an employer, you play an active part in your employee's rehabilitation. Your employee must cooperate in this process.
The company doctor and the Working Conditions Act
For the purposes of sickness absence management, you must be assisted by a company doctor. A company doctor is a health and employment specialist. They are there for both the employee and the employer and provided independent and impartial advice. They are bound by medical professional secrecy and have to comply with various privacy regulations. Their duties and responsibilities:
- They assist employers in drafting prevention and absence policy, assisting sick employees and helping them return to work.
- They have free access to the workplace at all times to gain a better understanding of the working conditions and workload.
- They can be contacted by employees with questions, with or without health-related complaints, about their work in relation to their health. This is called walk-in surgery hours. You can read more about this below.
- They can consult the prevention worker, works council and/or employee representation body.
- If an employee has doubts about the advice of the company doctor, they may request a second opinion. The company doctor must comply with this request, unless there are compelling reasons not to do so.
- They must report occupational diseases to the Netherlands Centre for Occupational Diseases.
What is the idea behind walk-in surgery hours?
Under the Working Conditions Act, employees must be aware that they can visit the company doctor for questions about health in relation to work, even if there is no question of absence or complaints. Walk-in surgery hours are suitable for this purpose. In this way, a consulting hour can be a means of preventing absence.
The employee requests the option of walk-in surgery hours themselves. This consulting hour is anonymous and the employer will not receive any feedback, unless the employee gives their express permission for this. The employer will receive an invoice without specification for the walk-in surgery hours.
What is the idea behind the second opinion?
An employee can request a second opinion from another company doctor if they have doubts about the company doctor's advice, for example about:
- Absence management.
- An occupational health examination conducted, better known as POHE/PME.
- The walk-in surgery hours.
The company doctor cannot refuse the request for a second opinion, unless there are compelling arguments for doing so (for example, if the second opinion is not used for the purpose for which it is intended or if a second opinion is requested too often).
The company doctor refers the employee to another company doctor or other occupational health and safety service. The basic contract between the employer and the occupational health and safety service or company doctor specifies who can give a second opinion.
How is the cooperation of the company doctor with other professionals?
The advice of the company doctor is essential for the rehabilitation of your employees. They help them to return to work quickly and responsibly. However, the company doctor may just as well have some of their tasks carried out by other specialised occupational health and safety service professionals. This is called task delegation. Important to know: The quality of care and the privacy of your employee are safeguarded.
The Risk Assessment
The risk assessment is a mandatory means for employers to promote health and safety in the company, because providing a safe and healthy working environment starts with an understanding of the risks. A risk assessment allows you to identify all work-related risks and address them in a targeted manner. This results in less absence, more efficient working practices and motivated employees.
The Preventative Medical Examination (PME)
With the PME you can promote health and vitality in your company. Your employees gain insight into their own health and vitality and (where necessary) receive action points to improve them. You show that you appreciate your employees and value their health. As such, the PME is more than a statutory obligation. It brings great benefits to employers and employees. We offer two differtent PME's. PME Vitality and PME Personal.
The prevention worker
Every company is obliged to appoint one or more prevention workers. In smaller companies (maximum 25 employees), the director/owner can take on the role of prevention worker themselves. Are you interested in following a training 'Prevention Worker'? Please contact our Academy via 030-2996363
During the training course, we will discuss practical questions and issues in detail to help you manage and reduce absence effectively. The training course is intended for everyone who has to manage absence in their role as supervisor or absence coordinator or as P&O or HRM officer.
As an employer you have a lot of responsibility and you have to comply with various statutory obligations. However, employees also have a number of important obligations they must comply with under the Working Conditions Act. They have to attend to their own safety and the safety of their colleagues:
- Employees are responsible for receiving proper information and instruction from the employer.
- They must work safely and comply with safety regulations.
- They must use all work resources correctly and handle hazardous materials appropriately.
- Where personal protective equipment is prescribed, its use is mandatory.
- Employees must use the tools, implements and machines entrusted to them in accordance with the (safety) regulations.
- Unsafe situations must be reported immediately to the manager.
- Employees are required to cooperate in an investigation by the government's Health and Safety Inspectorate.
- If an employee is ill, they must actively contribute to their rehabilitation according to the steps of the Eligibility for Permanent Invalidity Benefit (Restrictions) Act.
Work and Income (Capacity for Work) Act (WIA)
Employees who are ill for more than 2 years and at least 35% unfit for work are entitled to WIA benefit. WIA is the Dutch Work and Income (Capacity for Work) Act. The starting point of the WIA is to have people participate in the production process to the maximum extent possible. Looking at possibilities. So that employees can return to work responsibly as quickly as possible. And be sustainably employable again.
The WIA comprises two schemes: the IVA (Fully Disabled Workers Income Scheme) and the WGA (Return to Work Scheme for the Partially Disabled). The IVA is a benefit for employees who are fully and permanently incapacitated for work and are likely to have little or no income due to their illness. The WGA supplements the income of employees who are partially fit for work.
Fines and penalties under the Working Conditions Act
Non-compliance with the Working Conditions Act can cost you a lot of money.
Basic contract not in order
Under the Working Conditions Act, employers must have a basic contract with an occupational health and safety service or a company doctor.
- No basic contract: €1,500
- Basic contract not complete: €750
- Arrangements for absence policy support are lacking: €750
- There is no company doctor's procedure: €1,500
- Employees have not been made aware of the possibility of walk-in surgery hours: €1,500
No prevention worker
Every company must appoint one or more prevention officers. In smaller companies (maximum 25 employees), the owner/director can take on the role of prevention worker themselves.
- No prevention worker designated: €1,500
No (current) risk assessment
The Inspectorate SZW checks on behalf of the Ministry of Social Affairs and Employment (SZW) whether companies comply with working conditions legislation. The amount of the fine depends on the number of employees.
- No current risk assessment: maximum of €4,500
- No action plan: maximum of €3,000
In addition to paying these penalty/ies, you are of course also obliged to comply with the statutory requirement to have a risk assessment and action plan in place.
If, according to the UWV, have you not done enough to rehabilitate your sick employee and your employee applies for a WIA benefit, the UWV may impose a wage sanction on you, and you will be obliged to continue to pay your employee's wages for a maximum of 1 year longer. Dismissal will not yet be possible in that case.
Bearing an insurance excess means that, as an employer, you choose to remain responsible for your (former) employees for whom you do not or no longer have the obligation to continue to pay salary. You will largely take over the role of the UWV. You then choose to keep a grip on absence and to influence the policy and rehabilitation of (former) employees.
Sickness Benefit Act and Excess Bearer
If you bear or are about to bear an insurance excess under the Sickness Benefits Act (ZW), you will be liable, for a maximum of the first two years of absence, for paying sickness benefit, absence management and the return to suitable employment of employees who left employment while on sick leave.
Return to Work Scheme for the Partially Disabled (WGA) and WGA Excess Bearer
If you bear or about to bear an excess under the Return to Work Scheme for the Partially Disabled (WGA), you will be responsible for the WGA benefit and the rehabilitation of your (former) employees for up to ten years after the UWV has granted your (former) employees WGA benefit. WGA benefit is granted after two years of illness, if your (former) employee is 35% or more incapacitated for work.
Privacy and the General Data Protection Regulation (GDPR)
Your employees are subject to privacy rules and the company doctor is bound by medical professional secrecy. For example, you will not receive any individual results of the PME and there are restrictions as to what questions you are allowed and not allowed to ask an employee who is on sick leave.
If an employee reports sick, an employer may request and register the following information about their health:
- Telephone number and (nursing) address;
- Likely duration of the absence;
- Current arrangements and work;
- Whether the employee falls under any of the safety net provisions of the Sickness Benefits Act (but not under which safety net provision);
- Whether the illness is related to an accident at work;
- Whether there has been a traffic accident involving a potentially liable third party (possibility of recourse).
The data that an employer is allowed to process, in addition to the data of the sickness notification, is the data that the company doctor/occupational health and safety service has provided them with about:
- The work the employee is no longer or still capable of doing (functional limitations, residual possibilities and implications for the type of work you can still do);
- The expected duration of the absence;
- The extent to which the employee is incapacitated for work (based on functional limitations, residual possibilities and implications for the type of work they can still do);
- Any advice on adjustments, work arrangements or interventions that the employer must make for the employee's rehabilitation.
Particularly in the area of civil rights, the GDPR has imposed additional obligations on organisations that process personal data. Organisations must be transparent about which personal data is processed, in what way and by whom. In addition, the processing of personal data must be minimised and there must be an appropriate and legally justified reason for any processing. ArboNed demonstrably complies with all new requirements and work processes arising from the GDPR.