Is an Employee Required to Take Leave if He Goes on Holiday during Illness?

An employee who was incapacitated for work and who, according to the occupational physician, was fully unavailable for work, did not have to take-up his leave days when he went on holiday for a longer period during his illness, since he had already been planned it before he fell ill.

An employee worked at a truck production company as a senior measurement technician. Late 2017, the employee submitted a holiday request for the period from May 13 to June 22, 2018. The employer approved the request.
Late January 2018, the employee reported labour incapacitated, arising from a labour dispute. Early May 2018, the occupational physician decided that the employee was not available for work. The employee informed both the occupational physician and his manager that he would go to Norway with his motorhome for a longer period. The occupational physician mentioned the holiday in his advice and the manager confirmed that he had been informed.
When, subsequently, the employer wrote off 29 leave days, this lead to proceedings in which, successively, the Sub-district Court, the Court of Appeal and the Supreme Court had to rule on the employee's claim to have the written off leave days paid upon termination of the employment contract in 2019.
The Sub-district Court rejected the claim on the ground that the employee had agreed to the writing-off of the leave days. The Court of Appeal disagreed with this judgement, however. The Court of Appeal annulled the Sub-district Court's judgment and ordered the employer to pay out the leave days.
In cassation, however, the employer stated that, although the law stipulates that sick days during an established holiday in principle qualify as sick days and not as leave days, this provision does not entitle a sick employee whose established holiday has not yet started to a holiday without the leave days being written-off.

First and foremost, the Supreme Court stated that the law stipulates that days on which an employee is ill during an established holiday do not qualify as leave days, unless, where appropriate (i.e. after earlier onset of the illness), the employee agrees that they will qualify as such.
In addition, the law allows parties to agree in writing in advance that leave days on which an employee is ill will still be regarded as leave days, as long as this does not interfere with the statutory four-week annual holiday entitlement. In an amendment of the law per January 1, 2012, the legislator clarified that compulsory taking leave days during illness will also be possible, when employees are obliged to perform suitable work or to cooperate in efforts aimed at reintegration. If the employee wants to be temporarily released from these obligations, he has to take days off. If, however, employees are so ill that they are completely exempt from their reintegration obligations, taking days off is not an option. That is why the Supreme Court rejected the employer's claim that going on holiday during illness gave reason to write off leave days.
The Supreme Court agreed with the Court of Appeal that just informing the occupational physician and the manager about the intention to go on holiday is not sufficient to assume that the employee had accepted that his sick days would be qualified as leave days.
Yet, the employer's appeal in cassation led to some success.
The employer had relied on a provision in the applicable CLA which, according to the employer, implied that it had been agreed in writing in advance that sick days during an established holiday could be offset against leave days up to the statutory number of annual holidays. The Court of Appeal had ruled that a CLA cannot be regarded as a written agreement in which it can be agreed in advance that sick days during an established holiday will qualify as leave days. The Supreme Court, however, disagreed with this judgement. From the history of the development of the relevant legal provision he Supreme Court deduced that a CLA can also be seen as a written agreement with which an employee may be deemed to have agreed in advance to the qualification of sick days as leave days.

If a sick employee goes on holiday, this often leads to annoyance for employers if no leave days can be written off in return. On this point, the law makes a distinction between offsetting sick days with vacation days and taking holidays during illness.
Offsetting sick days with vacation days is only possible if this has been agreed in writing in advance. Usually this is done in an employment contract but, in the above judgment, the Supreme Court decided that it is also possible to have it set-out in a CLA. If it later turns out then that an employee has been ill during an established holiday, leave days can be debited from the holiday balance up to the statutory minimum number.
An employee may be required to take leave days during illness if he/she is capacitated to perform suitable work or to make other efforts aimed at reintegration. The number of leave days to be written off does not depend on the extent to which the employee performs the suitable work or to which he/she has to the make reintegration efforts, but on the period in which the employee wants to interrupt the suitable work or the reintegration efforts. If, however, the employee has no options whatsoever to perform work or to make reintegration efforts, an employee's sick day can only be qualified as a leave day if he/she has accepted this when he/she had been ill before.
For that reason, the Supreme Court did not share the employer's assertion that the sick employee had to take leave days during an established holiday if he goes on holiday during illness.
If the Supreme Court had followed the assertion, it would have led to the need to assess the question of when one "goes on holiday". This is quite subjective. The employer might argue that the fact that the employee spent two weeks on a lounger on the beach of one of the Spanish Costas indicates that he “went on holiday", whereas the employee might argue that he joined his family members to Spain so as not to deprive them of their holiday, but that he was actually too ill to enjoy the holiday and that all he had been able to do was lying on a lounger on the beach all day. And is a day trip to the amusement parc “De Efteling” also “going on holiday”? And what to say if on an extremely hot summer day someone from The Hague goes to the Scheveningen beach to cool off?
Linking the obligation to take leave days to the need to interrupt the performance of suitable work or the reintegration efforts, will prevent these tricky questions. As soon as an employee with work or reintegration possibilities wants to go away for a longer period of time, he will have to ask his employer for permission to have a break from performing the suitable work or from making the reintegration efforts. This would be the signal for the employer to write off leave days for the period of interruption.
Finally: the employee in the above case was incapacitated for work as a result of a labour dispute and, according to the occupational physician, was unavailable for work or reintegration. Given the labour dispute, employment with the employer was probably not an obvious option, but if the occupational physician had decided that the employee was fit to cooperate in a parallel-track, aimed at finding suitable employment with another employer, the writing off of the leave days would have been no problem any more.
Even participating in mediation may have been sufficient for this purpose.