- Holiday Legislation
- July 26, 2010 | Authors: Dennis Veldhuizen; Alexandra van Hogendorp-Rothenbücher
- Law Firm: Greenberg Traurig, LLP - Amsterdam Office
Accrual of holidays during illness
The Cabinet recently approved a legislative bill, submitted by Minister of Social Affairs and Justice, that seeks to align the Dutch holiday and leave legislation with European legislation. This bill was prompted by the Schultz and Pereda rulings of the European Court of Justice, respectively 20 January and 10 September 2009. In these rulings, the European Court of Justice determined that employees who are wholly unfit for work because of illness, shall accrue holidays throughout the entire duration of their illness.
At present, this is not the case in the Netherlands: according to article 7:635 paragraph 4 of the Dutch Civil Code, employees who are wholly unfit for work only accrue holidays during the last six months of their illness. This means that employees who are ill for more than six months are not entitled to accrue any further holidays.
If the bill is adopted, there is a chance that employees will retroactively be entitled to accrued holidays, perhaps up until the Schultz ruling of 20 January 2009. It is also possible that the legislature will not grant the employees holiday rights but instead decide that employers are required to financially compensate the employees for the retroactively accrued, but not enjoyed, holidays.
The bill also provides that employees must take their statutory holidays within a year and a half, or else the holidays will lapse. The current statutory limitation is five years. Delaying too long may place the safety and health of the employee at risk. Holidays exceeding the statutory minimum fall outside the new regime. The employer and the employee may agree to extend the time limit.
The bill has now been submitted to the Council of State. The text of the bill and the opinion of the Council of State are public by submission to the House of Representatives. We will keep you informed.