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A VSO during illness: what is and isn't allowed?

A VSO during illness: what is and isn't allowed?

At ZekerArbo , we regularly receive questions about discussing a settlement agreement (VSO) during an employee's illness. This is an important topic because strict rules apply when an employee is sick. We are happy to explain what is and isn't allowed.

What is a VSO?

A settlement agreement (VSO) is a termination agreement between an employer and an employee. But what exactly is a VSO in legal terms? It is a document that brings the employment contract to an end by mutual agreement, without the involvement of a court or the UWV. Both parties must agree to the terms of the VSO.

When is a VSO an option?

A VSO may be an appropriate solution in the following situations:

  • If the employee himself indicates he does not want to return
    Sometimes an employee sees no possibility of returning to the company or even the workforce. If this decision is well thought out, a VSO can be a solution.
  • In case of a long-term disrupted working relationship
    If there is a serious disruption in the working relationship that hinders reintegration, a VSO can open the way to a solution. This must be carefully considered and well documented.
  • After the 104-week limit: When an employee has been on sick leave for more than two years, the employer’s obligation to continue paying wages ends. At that point, a VSO is a safe and standard way to properly terminate the employment relationship with a transition payment.

Offering a VSO while on sick leave: what should you keep in mind?

Yes, you may offer a VSO while an employee is on sick leave, but it is important to handle this with care. There are specific rules regarding VSOs during sick leave. As an employer, you must take the following into account:

  1. Restored upon signing 
    An important legal principle is that an employee must be recovered at the time of signing. In practice, we often see a “notional recovery”: the employee is reported as recovered to clear the way for unemployment benefits. Signing a VSO during illness (while the employee is actually still sick) is risky; the UWV may view this as an “act of fraud,” resulting in the employee not receiving sick leave benefits or unemployment benefits. That is why it is wise to first seek advice from the company doctor .
  2. Do not apply pressure
    Dhe employee should not be pressured to accept a VSO. The initiative may come from either side, but it is crucial that the employee can make a decision freely and without coercion. You should not promise "rewards" to ensure that the employee signs. Put in the VSO that the employee has 14 days to think about it after signing. If you don't do this, the employee is automatically entitled to 21 days of reflection time. Also point out to the employee that they can seek legal advice before signing anything.
  3. Reintegration comes first 
    The law stipulates that reintegration takes priority in accordance with the guidelines of the Wet Verbetering Poortwachter. A VSO during illness may not be used to evade reintegration obligations. Therefore, always continue working toward recovery, possibly through a second-track program, as long as the agreement is not yet final.

Calculating VSO: the terms of the agreement

When drafting the document, you must calculate the financial settlement of the VSO. What is the minimum information that must be included?

  • The reason for the termination (important for unemployment insurance eligibility).
  • Payment of vacation days and vacation pay.
  • Notice period: the period until the contract officially ends. 
  • Transition allowance: the legally agreed-upon allowance. 
  • Possible leave of absence with pay. 

How do you go about it? 

If you as an employer or employee want to discuss a VSO during illness, do so openly and transparently. Discuss the situation, explain what a VSO entails, why you want to discuss a VSO and the possible consequences.

  1. Document the process:
    Discuss the matter with each other and ensure that all steps are properly documented. This is in the best interest of both the employee and the employer.
  2. Test the VSO legally:
    Agreeing a VSO is a legal process, so it is always wise to consult legal counsel when drafting the agreement. This ensures that everything follows the law. Again, this applies to both the employer and the employee.

For more information see www.juridisch.nl/arbeidsrecht/ontslag/vso-betekenis/

Do you have questions about preparing or submitting a VSO while on sick leave? Contact the professionals at ZekerArbo. We’re here to help.