The two years of illness are nearing their end. This is a turning point: the dismissal prohibition lapses, the WIA assessment determines your income, and your employer can take action. A crucial moment that requires careful guidance.
You have now been sick for almost two years. All this time you were protected against dismissal by the statutory dismissal prohibition. Your employer had to continue paying your salary and facilitate reintegration. But now week 104 is approaching, and everything changes.
Perhaps around week 88 you received a letter from the UWV about the WIA application. Perhaps your employer has already hinted at termination of employment. Or perhaps your employer is staying silent and you do not know what will happen.
This is the period when everything comes together: the WIA assessment, the RIV test by the UWV, possible wage sanctions, and the decision about your employment. Your employer now legally has more options than in the past two years.
The choices you make in the coming weeks have major financial consequences. One wrong step can cost you thousands of euros in transition payment or benefits.
From week 88 you receive a letter from the UWV. You have until week 93 to apply for WIA benefits. Late application can have consequences for your benefits.
The assessment consists of two parts: a medical examination by an insurance physician and an occupational examination. The insurance physician assesses your limitations, the employment expert looks at what work you could theoretically still do. Prepare well and bring someone who knows your situation.
At 80-100% incapacity for work with permanent character, you receive an IVA benefit. At 35-80% incapacity for work, you receive a WGA benefit. If you are less than 35% incapacitated, you do not receive WIA benefits. If employment ends, you can apply for unemployment benefits, provided you are available for work.
The statutory decision deadline is 8 weeks, but this is often not met in practice. In case of delay, you remain uncertain about both your benefits and your employment. This can also have consequences for a possible wage sanction for your employer.
With your WIA application, the UWV also assesses the reintegration report (RIV). This is the documentation of all reintegration efforts over the past two years. The UWV tests whether you and your employer have done enough for reintegration.
If the UWV judges that your employer has done too little, the UWV can impose a wage sanction. This means your employer must continue paying salary for up to an additional 52 weeks. A wage sanction is always imposed on the employer, not on you as employee.
Important: the decision moment for a wage sanction is around the WIA application. If the UWV imposes the wage sanction too late, your employer can object. A late wage sanction can be legally vulnerable, although annulment is not automatic.
With a wage sanction, the dismissal prohibition also remains in effect. Your employer cannot dismiss you until the wage sanction is lifted or has expired.
After 104 weeks, the dismissal prohibition during illness lapses. Your employer can then start a dismissal procedure or offer a settlement agreement.
Your employer can apply for a dismissal permit from the UWV due to long-term incapacity for work. The UWV tests whether you cannot recover within 26 weeks and whether there is no other suitable work with the employer. If granted, your employer may terminate.
Your employer can also offer a settlement agreement (VSO) to end the employment by mutual consent. This can be more advantageous because you can negotiate a higher compensation, but always have a settlement agreement assessed before signing.
Upon dismissal after long-term illness, you are entitled to the statutory transition payment. This amounts to 1/3 monthly salary per year of service, up to the statutory maximum (indexed annually). Your employer can reclaim this compensation from the UWV through the compensation scheme, provided conditions are met.
Before your employer may dismiss, they must demonstrate that there is no possibility to redeploy you in another suitable position. This also applies to adapted work or a position at a lower level.
Some employers choose not to take action after 104 weeks. They stop salary payment (because the salary payment obligation has ended), but do not terminate the employment contract. This is called a dormant employment contract.
Previously, employers did this to avoid the transition payment. But since the Xella ruling by the Supreme Court in November 2019, this is no longer simply permitted. As an employee, you can now demand that your employer cooperate in termination with transition payment.
The Xella standard: if you meet the conditions for dismissal due to long-term incapacity for work, your employer must in principle agree to a proposal for termination with award of the transition payment. Exceptions may exist in cases of real reintegration chances. If your employer refuses without valid reason, they act contrary to good employer practice.
Note: you must make a concrete termination proposal to your employer yourself. Just a wish for termination is not sufficient. MediRights can draft this proposal for you.
If the UWV rules that you are less than 35% incapacitated for work, you do not receive WIA benefits. You must then return to work or, if employment ends and you are available for work, you can apply for unemployment benefits.
At less than 35% incapacity for work, you look together with your employer at what opportunities there are. Perhaps you can resume your own position, or there is other suitable work within the company.
Do you disagree with the WIA assessment? You can object to the UWV within 6 weeks. It is wise to get guidance with this objection process, as the burden of proof lies with you.
The end of the 104 weeks is a complex junction where employment law, social security, and negotiation strategy come together. You are dealing with the UWV, your employer, possibly a wage sanction, and decisions about your employment.
MediRights maps out your complete situation. We analyze your file: the reintegration efforts, medical documentation, communication with your employer, and your expected WIA outcome. Based on this, we determine the best strategy.
If your employer offers a settlement agreement, we assess it for all risks and negotiate better conditions. If your employer keeps the employment contract dormant, we draft a Xella proposal with which you can claim your transition payment.
We also guide objection against WIA decisions and advise on the timing of all steps, so you do not lose rights by acting too early or too late.
Start preparation in time. The choices you make now determine your income for the coming years.
Contact us