Highly skilled migrant and sick leave

When it comes to sick leave and sick pay, the Netherlands is the most generous country (where a sick employee is entitled to continuous payment of (a part of) their salary for a period up to 104 weeks). This stands in sheer contrast to many other OECD countries. For example, in the UK, an employer can contractually offer their employees longer and higher sick pay. Without such a contractual arrangement, a UK based employee is only entitled to a statutory sick pay of £118.75 per week for a period of 28 weeks.

What does the generous sick pay policy mean for a highly skilled migrant/European blue card holder and their employer, especially as a highly migrant must earn a gross salary of €5688 per month. If one has not reached the age of 30, their gross salary must be €4171 per month or higher. What should a highly skilled migrant and their employer be aware of?

Sick pay amount 

It happens sometimes that an employer totally overlooks the implications of the Dutch immigration laws for their employment conditions (eg. the amount of sick pay). Sometimes, a company does not include any specific provisions pertinent to sick leave and/or sick pay in their employment contract, and there is not a collective labour agreement (“CAO”) in their sector. As a corollary, article 6:729 of the Dutch Civil Code ("Burgerlijk Wetboek") applies, stipulating that a sick employee shall be entitled to 70% of their gross salary. If the sick employee is a highly skilled migrant, earning a salary slightly higher than the required threshold (such as, €6000 per month), the gross salary will be lower than the required threshold, which will be in contravention of the Royal Decree on implementing the Foreigner Employment Act 2022. Thus, it is advisable to check how much a highly skilled migrant’s salary will be, if they cannot continue working due to sickness.

Sick pay during the second year of illness

During the first year of sick leave, most Dutch companies supplement the statutory sick pay with an additional amount. As a result, most employees will be able to receive 100% of their gross salary during the first 52 weeks of their sick leave. Nonetheless, this voluntary supplement usually stops after the first year. Starting from the 53rd week, an employee is normally entitled to the statutory sick pay, which is 70% of their gross salary. If this employee happens to be a highly skilled migrant, it is likely that they no longer meet the salary threshold. 

Payment obligations

Pursuant to the Royal Decree on implementing the Foreigner Employment Act 2022, a highly skilled migrant’s salary must be paid by their employer/recognized sponsor. In reality, most employers have to continue paying - out of their own pocket - a sick highly skilled migrant’s salary. Nonetheless, there are some specific cases in which the UWV (the Labour Department) and/or an insurance company may take over the payment obligations. With regard to the latter, on the basis of the written correspondence that we exchanged with the IND, the IND tends to be relatively lenient.

Should you have any questions about the highly skilled migrant policy or other areas of Dutch immigration/nationality law, please do not hesitate to contact us or book a consultation with one of our lawyers.