When an employee in the Netherlands reports sick, the employer may manage the absence but may not investigate the illness. You may ask how long the absence is expected to last and how work can be covered, but not what the illness is or what caused it, even if the employee is willing to tell you.
Medical questions go to the occupational physician (bedrijfsarts), who passes on only what the employee can and cannot do. Monitoring outside that route, such as checking social media or tracking software, quickly breaches the General Data Protection Regulation (GDPR).
Who is allowed to know what during sick leave?
The employer knows the facts of the absence; only the occupational physician knows the medical details. This separation follows from the GDPR and Dutch employment law, not from good practice alone.
- Darbuotojas reports sick under the company’s absence policy, stays reachable and gives medical information only to the occupational physician.
- Darbdavys records the absence, continues to pay wages, calls in the occupational physician and works on reintegration based on non-medical advice.
- The occupational physician assesses fitness for work and tells the employer about functional limitations, work capacity, expected duration and needed adjustments, without the diagnosis.
What is the legal basis?
Under Article 7:629 of the Dutch Civil Code (BW) the employer continues to pay at least 70% of wages for up to 104 weeks of sickness, and under Article 7:658a BW both parties must work towards reintegration. The Working Conditions Act (Arbeidsomstandighedenwet, Arbowet) requires the employer to use an occupational physician for sickness guidance.
Health data is a special category of personal data under Article 9 GDPR. Article 30 of the Dutch GDPR Implementation Act (UAVG) allows an employer to process health data only insofar as necessary for reintegration and for applying statutory rules such as continued wage payment. The Dutch Data Protection Authority (Autoriteit Persoonsgegevens, AP) takes the view that this leaves no room for the employer to ask about diagnosis or symptoms.
What may an employer record and ask?
Only what is needed for wage payment, planning and reintegration. The table shows the dividing line.
| Informacija | Darbdavys | Darbo gydytojas |
|---|---|---|
| Start and end date of the absence | Taip | Taip |
| Numatoma trukmė | Yes, a general estimate | Yes, a medical prognosis |
| Contact details during absence | Taip | Taip |
| Whether the absence follows a workplace accident | Taip | Taip |
| Functional limitations and work capacity | Yes, as advised by the physician | Yes, assessed by the physician |
| Diagnosis, symptoms, cause, treatment | Ne | Taip |
For a new system that tracks absence systematically, the employer must assess whether a Data Protection Impact Assessment (DPIA) under the GDPR is required, and must tell staff in its absence policy what is recorded, who can see it and how long it is kept.
Which monitoring is not allowed?
Anything that collects health information outside the occupational physician, or that is not necessary and proportionate. Typical examples:
- asking for a note from the GP (huisarts) or specialist;
- asking “what do you have?” or about symptoms or medication;
- systematically searching the employee’s social media for signs that contradict the illness;
- installing or using software to track the employee’s online activity during the absence;
- unannounced home visits to “check” the employee.
Hiring a private investigator is not prohibited outright, but courts and the AP accept it only in exceptional cases with a concrete, serious suspicion, after less intrusive steps, and with a limited scope. Evidence gathered unlawfully can weaken or sink a later dismissal case.
How should an employer handle a doubtful absence?
Through the occupational physician, never by confronting the employee about their health. The physician can assess the situation and then advise you without disclosing medical details.
Frequent short absences, for example on Mondays
Do not ask the employee what is “really” going on. Report the pattern to the occupational health service (arbodienst) and ask for a consultation. Frequent absence can point to an underlying problem that needs adjustments, and the physician can advise on that.
A holiday photo during sick leave
A photo alone does not prove someone is fit for work; rest or travel can fit a recovery plan. Pass the information to the occupational physician, who can discuss it with the employee and advise on fitness for work. Wait for that advice before stopping wages or taking measures.
A suspected second job during sickness
Raise it with the occupational physician, who may ask the employee about other activities that affect work capacity. Under Article 7:629(3) BW the employer may stop wages for the period in which the employee, without good reason, delays recovery, refuses suitable work or does not cooperate in reintegration. Announce such a wage stop promptly and in writing, and base it on the physician’s advice; summary dismissal requires much more and carries a high risk.
What if employer and employee disagree about fitness for work?
Either party can ask the Employee Insurance Agency (UWV) for an expert opinion (deskundigenoordeel). A court claim for wages during sickness must include such a UWV statement (Article 7:629a BW).
Separately, the employee can ask to consult another occupational physician about the physician’s advice; under Article 14 Arbowet that request must be honoured unless there are weighty reasons against it. The two routes are distinct and can be used one after the other. For more on sickness rights, see our guide on darbuotojų ligos teisės.
What can an employee do if privacy is breached?
Object internally first, then complain to the AP or go to court. A documented internal objection strengthens any later complaint.
- Raise it with the manager, HR or the confidential adviser (vertrouwenspersoon).
- Exercise your GDPR rights: request access to the data recorded about your absence and ask for deletion of data the employer may not hold.
- File a complaint with the Autoriteit Persoonsgegevens; this is free and does not require financial loss.
- Claim compensation under the GDPR before the court, or raise the breach in a dismissal or wage dispute.
For employers the risk is a GDPR fine by the AP, where breaches involving special categories of data fall in the highest fine bracket, plus loss of evidence in a later dispute. See also our article on whether jūsų darbdavys gali perskaityti jūsų „WhatsApp“ žinutes ir mūsų vadovas Bendrasis duomenų apsaugos reglamentas.
Į ką, kaip darbuotojui, reikėtų atkreipti dėmesį?
- Whether your employer asks for diagnosis, symptoms or a doctor’s note; you do not have to answer.
- Whether you report sick in line with the written absence policy and stay reachable.
- Whether you attend the occupational physician’s appointments; refusing can lead to a wage stop under Article 7:629(3) BW.
- Whether you disagree with the physician’s advice; if so, ask for another physician or a UWV expert opinion.
- Which data your employer keeps about your absence; you can request access under the GDPR.
Į ką, kaip darbdavys, reikėtų atkreipti dėmesį?
- Whether your absence policy is written down, shared with staff and states what is recorded and for how long.
- Whether managers know they may not ask about the illness, and use a script for sick calls.
- Whether your absence system holds only dates, contact details, limitations and reintegration agreements.
- Whether you have run a DPIA before introducing new absence tracking.
- Whether every doubtful absence goes to the occupational physician before you take any measure.
What can we do for you with sick leave and privacy?
Mūsų darbo teisininkai advise employers and employees; see also our overview of Nyderlandų darbo teisė.
- We review your absence policy and absence registration against the GDPR and the UAVG.
- We advise on a doubtful absence and draft the wage stop letter or the objection to it.
- We prepare a request for a UWV expert opinion and assess the outcome.
- We draft a complaint to the Autoriteit Persoonsgegevens or a compensation claim.
- We represent you in wage or dismissal proceedings before the kantonrechter.
Santrauka
- The employer manages the absence; only the occupational physician may know the diagnosis.
- Article 30 UAVG allows health data processing only as far as needed for wage payment and reintegration.
- Social-media checks, tracking software and home visits are in principle not allowed; investigators only in exceptional cases.
- A wage stop under Article 7:629(3) BW requires a lack of cooperation without good reason, preferably confirmed by the physician.
- Disputes about fitness for work go to a second occupational physician or a UWV expert opinion.
Dažnai užduodami klausimai
Ar darbdavys gali susisiekti su manimi dėl darbo, kai sergu?
Yes, for practical matters such as a handover or the expected duration of the absence. Your employer may not ask about symptoms, diagnosis or what your doctor said.
Do the privacy rules differ for short-term and long-term sickness?
No. The ban on asking about the illness applies from the first day. For long-term sickness the reintegration process becomes more formal, with a plan of action under Article 7:658a BW and a UWV review before a WIA application, but medical details still stay with the occupational physician.
Can my employer stop my wages if I refuse to see the occupational physician?
Yes. Under Article 7:629(3) BW the employer may stop wages for the period in which you refuse, without good reason, to cooperate with reasonable reintegration instructions. The employer should announce this clearly and in writing.
Can my employer use software to monitor me while I am on sick leave?
In practice almost never. Tracking an absent employee’s online activity to check whether they are really ill is not necessary for wage payment or reintegration, so it fails the GDPR tests of necessity and proportionality.
