Entitlement to Wages of Employee who had to Stay at Home with a Cold

An employee who had claimed for a long time that the guidelines of the National Institute for Public Health and the Environment (RIVM) had prevented him from going to work because he had a cold, was initially entitled to wages. Later this changed, because he had failed to comply with the employer's request at the time to have himself examined by the occupational physician.
Since September 2019, a wholesaler of sanitary, heating and plumbing products, employed a sales employee on the basis of a one year employment contract.
During the first six months, the employee had already been sick for quite a large number of days. Each sick report already included complaints about the reporting method. On March 16, 2020, the employee reported that he had cold complaints and that he therefore would stay at home, in conformance with the RIVM guidelines. When, a week later, the employer complained about a lack of information and threatened to withhold wages, the employee pointed out that he was not ill, but that the instructions simply were: to stay at home for as long as the cold complaints continued. He offered to work from home, but according to the employer, this would not be possible. The employer did see opportunities for the employee, however, to work at the company, at a sufficient distance to others. But the employee did not take up this proposal.
Finally, on 16 April 2020 the employer gave the employee the options to either come to work, or to report sick so that the occupational physician could examine him, or to take time off. The offer included the announcement of a “deduction” on the wage.
The employee did not respond until 1 May 2020 by reporting sick. The occupational physician, however, concluded that no illness was discovered, but that there was just a labour dispute and that the parties should enter into a discussion with each other. The employee, however, felt unable to enter into a discussion. The employer, subsequently, discontinued payment of the wages as of 1 June 2020. Finally, the employment contract was terminated in September 2020 when the agreed term had expired. When the employee asked the UWV for an expert opinion, the UWV insurance doctor decided that the employee had been ill as of 1 May 2020 and that the illness was related to a labour dispute. The employee submitted a claim with the Sub-district Court for payment of the wages for the month of April 2020 and for the wages as of June 2020.
The Sub-district Court held the opinion that the employee had been entitled to wages during the time in which he had to stay at home because of a cold, since the cause of the inability to work could not reasonably be borne by the employee. But when the nasal catarrh continued, the employee should have reported sick when the employer insisted to do so. As a result, the employer was not able to check the employee’s actual inability to resume work. Since the employee did not responded to the employer's request of 16 April 2020 to report sick until on 1 May 2020, the employer was entitled to reduce the employee's wages for the month of April. But, according to the Sub-district Court, the reduction did not imply that he did not have to pay the full salary over the month of April. The Sub-district Court found a reduction of half of the monthly salary reasonable. The employer should still pay the other half.
Then the Sub-district Court assessed the entitlement to wages on the basis of illness as of 1 May 2020. The Sub-district Court held the opinion that the employee had not acted as a good employee by completely and systematically holding off a discussion with the employer. By failing to cooperate with his reintegration, the employee was not entitled to wages. Since the employer had announced the wage reduction on 2 June 2020 in case the employee would not enter into a discussion with his employer, the employer should continue to pay the wages until 15 June 2020. As of mid-June 2020, the employee was no longer entitled to wages because, according to the Sub-district Court, he had frustrated his own reintegration.

It seems very likely that the employee’s main intention in the above case was to get wages without deserving it. If that was the case, the employee got what he deserved. However, the way in which the Sub-district Court arrived at this outcome is called into question.
In two ways, an employee who does not work can still be entitled to wages.
He/she is entitled to 100% of the wage if, reasonably, the cause of not-working lies beyond his/her control and he/she is entitled to 70% of the wage (often supplemented to 100% during the first year under a collective agreement or an employment contract) if he/she is ill. Both the employer and the Sub-district Court assumed that initially the employee was not ill, but had to stay at home under the RIVM guidelines. In our opinion this is not correct.
The employee was sick. He had a nasal catarrh. Normally, such a disease does not result in any restrictions on performing work, but the RIVM guidelines made the difference. That is why the employer could have required the employee’s examination by the occupational physician and, in the absence thereof, could have suspended the obligation to pay the wages for as long as the employee did not comply with the request.
If an entitlement to wages should nevertheless be assumed because the cause of not-working was beyond the employee's control, the question arises why the employee should not have had himself examined by the company doctor at the beginning, whereas later he should have.
Also the 50% reduction of the salary over the month of April 2020 raises questions.
If it had been the Sub-district Court’s opinion that there would be an entitlement to wages for half of the month, then it should have worded it differently in its judgment. And if it had been the Sub- district Court’s opinion that only half of the wages were due for the entire month of April 2020, then the question arises as what the legal basis is for reducing the wages by 50%. According to the law, the entitlement to wages is unambiguously either 100% or there is no entitlement.
Maybe, the employee may receive even more than he deserves in the end, but that is the result of the employer's failure to act adequately. If the employer had insisted that the employee should have reported to the occupational physician for an examination from the start (which we think he could have done) and had threatened to suspend his obligation to continue paying wages (instead of a wage reduction) for as long as the employee did not comply with this request, the employee would probably have been entitled to wages for a shorter period of time.