Netherlands Employment Law Update: Cosmetic Surgery, Sick or Not?

Reportedly, as a result of the success of the movie Barbie, there is a boom in Botox treatments going on. And both in women and men, where in the latter case there is talk of Brotox. For some employers, this raises the question of whether absence due to cosmetic treatments falls under regular sick leave, whereby you as an employer are obliged to continue to pay the wages. What’s up with that?

Own set-up

A person who becomes incapacitated for work during an employment contract is in principle entitled to continued payment of his or her salary for a period of two years. In most cases, this amounts to 100% of the salary during the first year and 70% during the second year. There is an exception to this rule. If the incapacity for work is caused by someone’s own intention, there is no right to continue to pay the salary.

It is assumed that when someone chooses to have a cosmetic operation performed entirely on their own, the incapacity for work that this entails is intentionally caused. In that case, there is therefore no right to continued payment of wages. Not even during the time when someone has to recover from the operation. The case law has established that the recovery period is ‘foreseeable’ and therefore falls under its own design. But no rule without exceptions.

Exception 1: complications

It becomes different if, as a result of such an operation, complications arise that are not reasonably foreseen. It is true that these complications can be attributed to one’s own decision to have the cosmetic operation performed, but the judge who had to rule on this stated that if these complications could not reasonably have been foreseen, there is no question of personal intent. So in that case you are entitled to wages.

Exception 2: indicated

If there is a medical indication or there are medical complaints – which can be both physical and mental – that can be remedied with cosmetic surgery, then there is no intent. Even if the employee has a choice whether or not to have the operation in question performed and regardless of whether or not the health insurance reimburses it. For example, the court recently ruled that an employer simply had to continue to pay wages to an employee who was absent due to a breast reduction abroad. This was due to the fact that the employee could prove that she had back problems that, according to her doctor, could possibly be remedied with the operation.

Exception 3: organ donation

Organ donation is a separate category. As a rule, it can be assumed that someone chooses organ donation himself, but that the reason for this is by no means voluntary. The law has provided for this. For someone who is incapacitated for work as a result of an organ donation, the employer can apply for a sickness benefit. Moreover, in such a case, the employer must also continue to pay things such as bonuses, overtime or commissions that would also have been due if the employee had continued to work.

Summarized

Many variants are conceivable, but the employee who eventually becomes incapacitated for work without his own intention is well protected under Dutch labour law and generally retains the right to wages. The employee who (only) wants to be beautiful must suffer pain, not only as a result of the operation but also in the wallet.

By Höcker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlandslabor@transatlanticlaw.com

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