How many sick hours do you have to enter by law?

Questioner

Example situation: An employee works in the catering industry and has a contract of 38 hours in 5 days. However, in the hospitality industry you often have a flexible schedule, so it differs per week which days you have to work. In principle, the employee must work 7.6 hours per day. Suppose the employee has worked 3 days in a week and has already made 32 hours. He is still scheduled to work 2 days. Then the employee becomes ill. What is the amount of sick hours that must now be entered for the employee? 1. 6 sick hours to supplement the 32 hours worked to 38? 2. 2 days of 7.6 hours, because those are the contract hours per day? With option 1, you supplement the hours worked to the number of contract hours and the employee's plus-minus balance remains the same. With option 2, the employee would receive plus hours. On the one hand, you could say that this is unfair because the employee has become ill, on the other hand, the employee has already worked 32 hours in 3 days, which means that overtime has indeed been worked in those 3 days (more than 7.6 hours worked per day). How does this work legally? What is allowed and what is not? Thanks in advance for your help!

Lawyer

When an employee with a flexible schedule becomes ill, the scheduled hours are initially considered sick hours. As soon as there is no longer a schedule, the number of hours that the employee works on average must be considered sick hours. As an employer, you then choose to pay out the 38 hours from the contract as sick hours, but if the employee has worked more in the three months prior to reporting sick, a legal presumption may have arisen for the excess and the employee can appeal to this. If the employee has worked an average of 40 hours in the three months prior to the absence, it may be that there is a claim based on legal presumption for 40 hours instead of 38 hours. For further explanation or clarification, please contact me via boksjuristen.nl.

Questioner

Hi Mirjam, Thank you very much for your response, this has already helped me a lot! One more additional question. Suppose an employee with a contract of 38 hours in 5 days is going to reintegrate, so he will start working 2 days a week for a certain period. In fact, he has to work 7.6 hours a day. Suppose he works 18 hours in total in those 2 working days (9 hours a day). How many sick hours do you still have to enter? Do you have to enter 22.8 hours (7.6 x 3), which means that the employee builds up plus hours (22.8 + 18 = 40.8, is 2.8 plus hours), or do you have to enter 20 hours (38 - 18), which means that you end up with exactly 38 hours? Thanks in advance for your help!

Lawyer

It is not the intention that an employee can work plus hours during illness, so you must always arrive at the agreed number of hours. In fact, he works 18 hours, so there are 20 hours left for which he does not work. If you have any further questions, please feel free to contact us. Success!