Corona virus: the position of the employer (7) – Addendum to the Gatekeeper Improvement Act (Wet Verbetering Poortwachter), NOW Calculator and NOW amendments

09/04 2020

This is update number 7 of our ongoing Q&A about Corona. Please find below some information about the addendum published by the UWV to the Gatekeeper Improvement Act (Wet Verbetering Poortwachter) in connection with corona virus, the tool for calculating the amount of the allowance based on the NOW scheme and recent changes to the NOW scheme. NOW is the abbreviation in Dutch for the Emergency Bridging Measure for the Preservation of Jobs.

Addendum Gatekeeper Improvement Act (Wet Verbetering Poortwachter)

The corona crisis may have an impact on the reintegration pathway for sick employees. The UWV has published an addendum to the Gatekeeper Improvement Act (Wet Verbetering Poortwachter), clarifying the way in which the UWV is dealing with the impact of the corona virus. In the current situation, reintegration reports are being assessed on a case-by-case basis. The addendum can be consulted at: https://www.uwv.nl/werkgevers/overige-onderwerpen/addendum-werkwijzer-poortwachter/index.aspx

 

Below is a summary of the main points in the addendum:

 

1.Assessments on a case-by-case basis

The starting point for assessment is still the Werkwijzer Poortwachter, i.e. the guidance on integrating sick or incapacitated workers. If the assessment based on the reintegration report leads to the conclusion that not enough effort has been put into re­integration, then consideration is given to the extent to which a reintegration process – or renewed reintegration process – has been affected by the situation that the employer’s business finds itself in due to the corona virus.

 

2.Assessment of the re-integration report

Employers who, without good reason, have failed to sufficiently comply with their re-integration obligations, can be fined by the UWV; this fine takes the form of extending the obligation to continue paying wages up to a maximum of 52 weeks. In the context of the corona virus, employers’ compliance with their reintegration obligations will be tested on a case-by-case basis. Employers must describe, with supporting evidence, what the impact of the corona virus is having on their business and the reintegration pathway of the sick employee. The UWV will then assesses whether the reasons given for ceasing the reintegration efforts are sufficiently credible.

  • The starting point is that the reintegration report must be assessed within the framework of what could be reasonably expected. The test is whether the reintegration efforts were reasonably sufficient and/or whether it was possible to follow the expected pathway, under the special circumstances. The same likewise applies to the reintegration report for workers whose contract has come to an end during a period of sickness and the reintegration report where the employer has opted to be the risk-bearer under the Dutch Sickness Benefits Act (Ziektewet).
  • Physical signatures on documents are not necessary. Employees may articulate their views on reintegration in the designated documents (either in the reintegration report or on the application form).
  • The reintegration report should be assessed as much as possible on the basis of information provided by the company doctor. The occupational health & safety expert is in ongoing consultation with the insurance doctor in the appropriate situations and the insurance doctor contacts the company doctor, if necessary; however, if the information provided by the company doctor is plausible, this is taken as the starting point for assessing the reintegration report.
  • Imminent insolvency is not a reason, not even due to the corona virus, to fail to comply with an obligation to continue paying wages. The fact that an employer is unable to meet its payment obligation does not mean that the reintegration efforts must be deemed as ‘sufficient’. Neither can this be deemed as a ‘plausible reason’ for efforts that are ‘insufficient’. Additionally, under the government’s NOW scheme, there is compensation for up to 90% of labour costs. One of the ways in which the government is helping with the costs of an occupational health & safety expert, etc. is by providing guarantees for business loans.
  • Even after the corona crisis has run its course, the UWV will still take into account situations where the corona virus affected reintegration activities.

 

3.Professional assessments 

Professional assessments will be commissioned by the UWV as far as possible on the papers and remotely. This will require a creative approach. However, it will not be possible in all cases to arrive at a substantive opinion; for example, the compulsory face-to-face appointment with an insurance doctor will not be possible. If relevant in the case of subsequent reintegration report assessments, it will not be possible to accuse the employer that a professional opinion was not requested during the corona period because of an impasse or cessation of reintegration efforts.

 

Calculator for calculating the amout of financial suppert

In the meantime, the University of Amsterdam has developed a calculator to calculate the amount of financial support under the NOW scheme. This handy tool can be used to calculate the advance payment as well as the final amount of financial support. The calculation is based on the NOW scheme dated 3 April 2020 and can be found at https://www.magontslag.nl/c/Contents/ltem/Display/210.

 

Changes to the NOW scheme

Even though the NOW scheme was introduced recently, initial changes have already been made. In brief, the changes are as follows:

1.Stricter UWV test for dismissal applications for economic reasons

When assessing dismissal applications for economic reasons, the UWV will also take into account the NOW scheme. This means that the employer must plausibly argue that dismissal cannot be prevented by recourse to the NOW scheme. This test applies only to dismissal applications submitted after 2 April 2020, because this was the date when application of the NOW scheme became known.

2.Article 7 NOW scheme: calculating the amount of financial support in the case of applications for dismissal  for economic reasons

Where employers nevertheless make an application for dismissal during the period when financial support is granted, the amount of the ‘fine’ (50% of pay) has been changed, because this has not delivered the desired result in all cases. Where an application is made to dismiss an employee for economic reasons, the following applies: the reduction in financial support is 50% higher than if there had been no continued payment of wages for the same employee in the period March to May 2020 (i.e the compensation period). The explanatory notes to the amended scheme give an example calculation that clarifies this further: : https://www.rijksoverheid.nl/binaries/rijksoverheid/documenten/regelingen/2020/04/03/wijziging-now/2+april+wijzigingsregeling.pdf

 Article 14(4) NOW scheme: extension to the period for calculating the final amount of financial support This period has been extended from 22 to 52 weeks, so that the UWV has sufficient time to properly check applications submitted for an interim or final calculation of the financial support and to verify the information supplied with these applications. In those cases, calculations will as far as possible be carried out in the first 22 weeks. The extended deadline allows more than enough time for additional verifications that are required in a number of cases.

3.Article 8(8) NOW scheme: new rule on applications for financial support where a non-Dutch bank account number is provided

The UWV cannot deal with any applications for financial support that provide a foreign bank account number. Article 8(8) of the NOW scheme now states that employers with a non-Dutch bank account can provide a Dutch bank account number within four weeks of the application. The financial support will then be paid into this Dutch bank account.

 

 

Please do not hesitate to contact us if you have any further questions.

Arlette Putker-Blees & Irene Francken-van der Ven

Arlette.Putker@LenAadvocaten.nl
Tel.: +31 (0)20 7608811
Mobile: +31 (6)13 14 48 50+31 (0)6 13 14 48 50

Irene.Francken@LenAadvocaten.nl
Tel.: + 31 (0)20 7608814
Mobile: + 31 (0)6 31000115