Special terms2021-12-17T15:45:49+00:00


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Special terms

In almost every employment contract ‘special terms’ are included. They each protect a different interest of the employer, including protecting the company’s interests, preventing unlawful competition or being able to terminate the employment contract prematurely. A non-exhaustive list of special terms is:

  • Competition and relationship clause;
  • Confidentiality clause;
  • Ancillary work clause;
  • Recruitment clause;
  • Interim termination clause;
  • Penalty clause;
  • Study costs clause;
  • Trial clause.

A good formulation and demarcation of the clause determines its legal force and effectiveness. And, of course, the possibility of enforcing the clause if necessary.

Include non-competition clause in employment contract

A non-competition clause can be included in the employee’s employment contract if, after the end of the employment contract, you want to prevent the (ex-)employee from performing work or activities that are competitive with your company. It protects your business.

The non-competition clause must be agreed upon in writing. In principle, this is only allowed in an employment contract for an indefinite period of time. It is only possible to include the non-competition clause in a fixed-term employment contract if this is necessary because of a substantial business or service interest. This reasoning must be included in the employment contract, otherwise the clause is null and void.

Your non-competition clause must also be well defined. This means that you must include the scope of the term, including (i) the duration of the term, (ii) its functional scope and (iii) its geographic scope. This delineation depends on (the nature and activities of) your company and the position of the employee.

Are you going to renew a fixed-term employment contract, or are you going to change your employee’s position and maintain the effect of the non-competition clause? Then, as a rule, this has to be agreed upon again. In such a case, please contact our employment lawyers. They can advise you on how to maintain the effect of your non-competition clause.

Employee confidentiality clause

A confidentiality clause ensures that your employee is obliged to keep certain information about your company confidential. We advise you to agree on this clause in writing, describing as concretely as possible what the confidentiality relates to. This prevents subsequent discussions about the operation of the clause. Furthermore, we advise you to attach post-contractual effect to the confidentiality clause. This ensures that the confidentiality clause also applies after the end of the employment contract.

Trial time clause

A probation period clause allows you to gain insight into an employee’s suitability for a period of 1 or 2 months. A probationary period clause is only valid if it is laid down in writing when entering into the employment contract and the clause is the same for both parties. The maximum period of the clause depends on the duration of the employment contract. Is the employment contract shorter than 6 months? Then no probationary period is allowed.

If you would like to know more about special terms and how best to formulate and use them, please contact Peter Verheijden or Lisa Kloot. They will be happy to help you.

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Sick employee does not cooperate in reintegration: employer actions

Sick employee does not cooperate in reintegration: employer actions

A reintegration process starts when the employer reports sick. Previously, we wrote an article about the steps that should be taken in a reintegration process. But what if the sick employee does not cooperate? Which actions can you take as an employer to get the reintegration process back on track or can the employer fire the sick employee if he does not cooperate?
In this article we discuss the actions or measures an employer can or should take if a sick employee does not comply with the obligations arising from the reintegration process.

Actions of the employer in case of non-compliance with the reintegration obligations

First of all, the employer must determine what exactly the reintegration obligations are that are not fulfilled. This determines to a large extent the action to be taken.

Warning not to comply with reintegration obligations

Sending a warning letter is a good first step when the employee does not comply with the reintegration. The employer is well advised to make clear which obligations the employee has, such as appearing at the company doctor, cooperating in drawing up the plan of approach and performing suitable work. Subsequently, the employer can schedule a meeting to discuss the obligations during reintegration.
If the employee disagrees with the advice of the company doctor, it is good that the employer points out in the letter that the employee can request an expert opinion from the UWV on the disability and reintegration.

Announcement of wage suspension or wage cut

If there is already a reason for a wage freeze or wage suspension (see below), it can be announced immediately that a wage freeze or wage suspension will be implemented in the event of non-compliance within a certain period.

Suspension of wages after violation of control regulations

A company is obliged to draw up a sick leave policy. For more information see our article on this subject. This policy contains control regulations concerning work disability, such as the procedure for reporting sick, the obligation to pass on accommodation details and the obligation to attend the company doctor’s surgery. If these control regulations are violated without a valid reason, the employer is allowed to suspend the salary.
If the employee complies with the control regulations again, he is entitled to continued payment of wages with retroactive effect. The wages that were not paid during the suspension must still be paid. No statutory increase or interest is owed on those wages.
Note: the wage suspension must be announced. Therefore, if the employer intends to implement a wage suspension, the employee must first be warned that he has violated the control regulations and that the employer has reasons to suspend wages. This gives the employee the opportunity to comply with the regulations after all.

Wage freeze after breach of reintegration rules

In the context of reintegration, the employee must among other things cooperate in drawing up an action plan and must perform suitable work if the company doctor advises this. If the employee does not cooperate without a valid reason, a wage freeze can be imposed. It is important that the employer uses this measure in time. If the employee has not or not sufficiently fulfilled the reintegration obligations and the employer has been inactive, the UWV may extend the obligation to continue paying wages after the end of the waiting period (in principle 104 weeks after reporting sick).

Please note: here too, the wage freeze must be announced.

Dissolution of the employment agreement of a sick employee

Failure to comply with the reintegration obligations may ultimately also lead to dissolution of the employment contract. The subdistrict court may grant the dissolution in the event of (seriously) culpable act or omission. This is the case if the employee repeatedly violates the reintegration obligations despite the written reminders from the employer and the applied wage freeze. The prohibition on giving notice during illness does not apply. Note: employer must have a UWV expert statement.

Summarily dismissing a sick employee

In extreme cases, summary dismissal is sometimes even possible if the employee does not fulfil the reintegration obligations. In this case, there must be additional circumstances. These could include, for example, the employee going on holiday abroad for an extended period of time without the employer’s permission during the reintegration process (Court of Appeal ‘s-Hertogenbosch ruling).

Want to know more about actions of the employer in case of non-compliance with reintegration?

It follows from the above that the employer must timely intervene during the reintegration process, so a UWV wage penalty can be prevented. For this, sufficient means are available. Want to know more about the possible actions? Lisa Kloot of LVH Advocaten in Rotterdam will be pleased to help you determine the right strategy. She can help you, for example, in drawing up a sick leave policy, drafting warning letters and conducting employment law proceedings.

Peter Verheijden

+31 (0)10 209 27 76

Bonus employees: how to create a good bonus scheme as an employer?

Bonus employees: how to create a good bonus scheme as an employer?

The bonus is a nice incentive for employees that you can use as an employer. But you have to be careful. The bonus scheme can be risky if it is not put down on paper correctly. As an employer, you then face the question: is the employee entitled to the bonus and how high is it? Obviously, you do not want to have that discussion with your employees.
In this article, we discuss how you, as an employer, can draw up a good bonus scheme. We also discuss a number of important pitfalls that often occur in bonus schemes.

How to create a good bonus scheme?

Determine the performance of the bonus scheme

A bonus is a variable reward linked to certain performances. This can be the performance of the organisation, the performance of an individual employee or a combination of both. So don’t use a standard bonus scheme, but attune the bonus scheme to the organisation and the function of the employees. Describe as clearly as possible the performances that must be achieved, leave no room for other interpretations and ensure that afterwards it can be verified whether those performances have been achieved.

Bonus scheme and subjective criteria

When determining performance, beware of subjective criteria, such as linking a positive assessment to the award of a bonus. If you do opt for this, make sure that you have a fixed assessment moment every year. Not giving an assessment and then not awarding a bonus is contrary to good employment practice as set out in Section 7:611 of the Dutch Civil Code judgment of the District Court of Amsterdam 6 September 2016.

Discretionary power in bonus schemes

In many bonus schemes we also see a discretionary power (freedom to make a decision at one’s own discretion) on the basis of which the employer may decide not to award a bonus or to award a lower bonus to the employee. It is good to include this, but the employer must take into account that this discretionary power to mitigate the bonus cannot be used just like that. It is established case law that this power to determine the bonus is subject to good employment practice. It follows from case law, Amsterdam Court of Appeal 18 January 2022, that good employment practices require the employer to make clear how the discretionary power is exercised. If this is not clear, the employer may not mitigate. Therefore, explain under what circumstances moderation is possible.

Termination of employment and bonus scheme

Another important point of attention with regard to the bonus scheme is that the employer can stipulate that the employee must be employed in order to be entitled to the bonus. If an employee leaves employment halfway through the year, he is not entitled to a bonus. It is also possible to opt for a pro rata claim to the bonus if the employee leaves employment halfway through the year. It is sensible to agree this in writing, all the more so if the bonus depends on a turnover which is only determined at the end of the year.

Beware of acquired rights in bonus schemes

Has an employee received a bonus year after year and does the employer at any time decide not to award a bonus? The employee may argue that this is an acquired right. Namely, that the bonus was granted every year and therefore became part of the fixed salary. This risk arises particularly if there are no clear agreements on the granting of the bonus. The advice for employers is therefore to clearly indicate with every bonus payment that it concerns a variable reward and not an acquired right.

Bonus scheme for sick employees

During illness, an employee is entitled to at least 70% of his or her salary for 104 weeks. But what about the bonus? After all, this is a variable bonus which (sometimes) depends on the performance of the employee. An employee may also be entitled to the bonus during illness if it depends on performance, as long as it is plausible that the employee would have achieved the performance if he had not been ill. An agreement in the bonus scheme that the employee will not receive a bonus if he is sick, is not possible. The obligation to continue to pay wages during illness is compulsory law (it cannot be contractually deviated from).

Need a lawyer in Rotterdam for drawing up a bonus scheme?

In short, do not use a standard bonus scheme. Tailor the bonus scheme for your employees to the organisation and the position of the employee. Choose for clear achievements and give yourself, as an employer, a clearly defined discretionary power.
Do you need help with drawing up a bonus scheme or do you have a conflict about the granting of a bonus? Please contact Lisa Kloot of LVH Advocaten. She is an employment lawyer and will be pleased to help you with all matters relating to employment law.

Lisa Kloot

+31(0)10 209 27 61

Amend model employment contract in 2022? Implementation of EU Directive on transparent and predictable terms of employment

In June 2019, the European Parliament adopted a Directive on transparent and predictable working conditions. The Directive grants new rights to employees and this thus affects employees’ employment contracts, as well as any employment conditions regulations. This may lead to employers having to change their (model) employment contracts and employment conditions regulations in 2022.
In this article we discuss the changes contained in the bill and consider the changes employers must make to their (model) employment contracts.

Implementation of Directive 2019/1152

The directive must be implemented in Dutch law. The government published a bill on 12 November 2021. The intended entry into force of the law is 1 August 2022. Thus, we recommend to review the employment contract of your employees and applicable regulations before that time.

Legislative amendments from Directive on transparent and predictable employment conditions (2019/1152)

Training costs clause

Employers already had a training obligation, but it is expanded by the Directive. Employers can no longer agree on a study costs clause for training that is necessary for the performance of the job. The employer must offer this training free of charge and the time an employee spends on the training is working time.

The question is therefore, what constitutes training that is necessary for the job? In any case, this concerns a training which the employer is obliged to offer based on the law or collective bargaining agreement.

Side-activities clause

An ancillary activities clause in the employment contract is possible from August 2022 only if the employer can justify it on the basis of an objective reason. If there is no such justification, the clause is null and void. Note: The justification does not have to be given at the conclusion of the employment contract or be included in the employment contract. The justification may already be included in the employment contract, but may also be given at a later date. So does an employee request permission to perform ancillary work? Then the employer can still provide the justification at that time.

The rationale behind this change is that an employee is free outside of working hours to work for another employer or to work for himself. Thus, an employee may have multiple jobs unless the employer can justify a prohibition. A justification could be, for example, the threat of a violation of the Working Hours Act, the protection of confidential business information or the health of the employee.

Employer information obligation

The information obligation of employers is expanded. Employers must, in addition to the information in Section 7:655(1) of the Civil Code, also provide information about:

  • Working hours;
  • Work place(s);
  • Wage components (bonus and allowances);
  • Procedural aspects in the event of termination of the employment contract;
  • Right to training;
  • Leave arrangements(s).

The employer can include this information in the employment contract, terms of employment regulations and/or personnel handbook.

On-call agreement

Employees are only obliged to work unpredictable working hours if the employer has made these working hours known at the start of employment. The employer is therefore given a more extensive information obligation in this area. An on-call worker must therefore know at what times he is obliged to work. This can be included in the employment contract.

Request for predictable work

Furthermore, after 26 weeks a call employee can submit a request for predictable work. Employers do not have to agree to this and the work must be available. Employers must respond to the request within 1 month (or within 3 months for small employers) with a written motivation. If the response is lacking, the employee’s request must be acted upon.

Prohibitions on giving notice

There is a new prohibition on giving notice. An employee who invokes the above new rights cannot be dismissed for that reason.

Posted workers in the EU

If an employer wants to post an employee from the Netherlands within the European Union, certain information must be provided. The employer must inform the employee about the wages, allowances and reimbursement of expenses to which he is entitled. This can be included in the employment contract or terms of employment.

Need help updating your employment contracts?

It is always wise to have your model employment contract checked regularly by an employment lawyer. Labour law is constantly changing and this year too there are changes, namely the implementation of the EU Directive on transparent and predictable terms of employment. Lisa Kloot of LVH Advocaten in Rotterdam will be happy to help you evaluate and adjust your employment contracts. She can also tell you more about the upcoming changes in employment law.

Compulsory education and study-cost clause: all points of attention for employers

Compulsory education and study-cost clause: all points of attention for employers

As an employer, you like to keep your employees’ knowledge up to date. This is important for the sustainable employability of your personnel and it can create more productivity within the organisation. Thus, a win-win situation.

But staff training requires investment. If the employer invests in an employee, the wish is of course that the employee will remain in service for a long time. But what if that employee leaves anyway? Who pays for the training if the employee leaves the company during or after the training?

Labour law has the necessary rules to deal with this. In this article we discuss all the points of interest for employers regarding the training of employees, namely the legal training obligation, training costs and the study costs clause.

Training obligation of employees

The law (Article 7:611a BW) stipulates that the employer must enable its employees to follow (1) the training necessary for the performance of their duties and (2) the training necessary for the continuation of the employment contract when the employee’s position is no longer held, if this can reasonably be expected of the employer (training in connection with redeployment). This implies an obligation for the employer to invest in employees by means of training. An employee is expected to make efforts as a good employee to accept the training and to complete it successfully.

Attention: see also heading “Change to training obligation and study costs clause as per 1 August 2022”.

Training necessary for the performance of a function

We will now zoom in on the first part, the necessary training for the execution of the position. It concerns necessary training. This includes training that is compulsory by law or by an external party (collective labour agreement or governing body). In addition to offering the training, the employer must also enable the employee to follow the training. The employer must make regular working hours available for the training activities.

Does the organisation have a CAO? Check it for the specific rights and obligations with regard to training.

Training in case of malfunctioning

The aforementioned training obligation is also important in a situation where the employee does not function. If there is dysfunction and this can be resolved through coaching or courses, it is up to the employer to offer support in the form of training. Are you, as an employer, not making enough effort? This can lead to serious culpability and the associated fair compensation.

Training costs to be borne by employer or employee?

In principle, the employer has to finance the necessary training mentioned above and training in the context of redeployment. Is the training not necessary? Then the employer does not have to finance it. If the employer does pay for the training, this can, under certain conditions, be deducted from the transitional allowance.

Study Costs Clause

As mentioned, a training course is an investment. An investment that the employer would like to recoup. This is not possible if the employee leaves shortly after completing the training. To prevent this becoming an empty investment, a study costs clause can be agreed. The education costs clause provides that an employee, if he or she resigns (or if the employer’s resignation is at the employee’s risk), must repay the training costs to the employee. Please note: in principle, an employer cannot invoke the training costs clause if the initiative for dismissal or non-renewal of the employment contract lies with the employer, unless other agreements have been made. For example, it may be agreed that the employee must repay the study costs if he is summarily dismissed or in the event of serious culpability on the part of the employee.

This study costs clause is not (yet) regulated by law, but case law has laid down a number of requirements:

1. The financial consequences (concrete amounts) of the clause and when it comes into effect must be properly explained, preferably in writing;
2. The period during which the employer will benefit from the study (and the resulting knowledge and skills) must be established;
3. The repayment obligation must decrease proportionally on the basis of the established period mentioned under 2 (sliding scale).

Even if the foregoing has been arranged well, it may be that the employer cannot invoke the study costs clause. This is the case if after the study costs have been deducted, the employee’s salary falls below the statutory minimum wage. Furthermore, invoking the study costs clause may be unacceptable according to the standards of reasonableness and fairness.

Change to training obligation study costs clause as of 1 August 2022

On 1 August 2022, new rules will be introduced in Dutch law regarding the training obligation and the study-costs clause. Based on the European Employment Conditions Directive (click here for more information about this directive), the employer is obliged to offer a study free of charge if (1) the study is compulsory on the grounds of the law, the CAO or regulation of a competent administrative body and (2) the study is necessary for the performance of the duties. If a study costs clause is nevertheless agreed for this compulsory or necessary training, the clause will be null and void. These are clauses whereby the costs of training are recovered or set off against monetary income arising from the employee’s employment.

Please note: training or education that employees are obliged to take in order to obtain, maintain or renew a professional qualification, does, in principle, not fall under mandatory training as referred to under 1. Therefore, a study-costs clause would be agreed upon with regard to such training. The question is how this will work out exactly in the Netherlands if a course of study is not compulsory, but necessary for the performance of the duties.

Do you need a lawyer in Rotterdam to advise you on the obligation to study and the study costs clause?

The above shows that agreeing and invoking a study costs clause is not self-evident. So think carefully about the exact wording of the education costs clause and consult an employment lawyer. If you want to invoke the clause, first get advice on your chances. If you would like to know more, please contact Lisa Kloot of LVH Advocaten.

Surveillance in the (home) workplace: what is an employer allowed?

Surveillance in the (home) workplace: what is an employer allowed?

Previously we wrote an article about the rules for camera surveillance in the workplace. The need for employer monitoring exceeds – partly in view of the corona pandemic – the mere checking of the workplace with cameras. Employers also have a need to monitor employees’ browsing habits, as well as the emails they send. And, of course, they want to prevent employees from spending hours Internet shopping and watching TV at the home workplace during working hours. But isn’t monitoring this a violation of the employee’s privacy, especially at the home workplace?
In this article, we address that question. Is an employer allowed to use monitoring tools and what rules must the employer abide by during a monitoring. To form a clear picture, we will also discuss case law.

When may an employer conduct structural workplace monitoring?

The employer must comply with privacy legislation, including the General Data Protection Regulation (AVG). Does the employer want to monitor the (home) workplace? If so, this must be announced in company regulations or the personnel handbook. In addition, the Works Council (if any) must grant permission for this monitoring. Finally, a legitimate interest is always required. And that legitimate interest is not always present, as case law shows.

Is an employer allowed to check an employee’s e-mails?

The District Court of Amsterdam awarded an employee compensation of € 10,000.00 after the employer had violated the privacy of the employee. The court ruled that the employer searched the employee’s mailbox without concrete suspicion, prior notice or consent. This was allegedly done to gather information about ongoing projects. However, the years 2016, 2017 and 2018 were also searched. According to the court, this violated Article 8 ECHR, especially since nothing shocking came to light. Also, the employer should have hired an external agency for the investigation, according to the court.

Is camera surveillance in the workplace permitted?

In determining the amount of the fair compensation, the North Netherlands District Court took into account the events surrounding the placement of cameras on the work floor. The employer had placed hidden cameras without notice to the employees and without the consent of the Works Council without having a legitimate interest in doing so. The hidden camera surveillance should also have been reported to the Personal Data Authority. Partly because of this, the court ruled that the employer was seriously culpable. Learn more about camera surveillance, read: rules for camera surveillance in the workplace.

Is an employer allowed to monitor the home workplace?

When deploying surveillance equipment, it does not matter whether the employee works in the office or at home. Working from home is not a reason for the employer to monitor more strictly. An employee is not obliged to agree to a home visit. An employer cannot impose sanctions for refusal. The same applies if the employer asks for a photo or video of the home office. Checking e-mails, telephone traffic, surfing behavior and behavior on social media is in principle not possible since this is private. However, when the employer complies with the requirements, control is possible.

Looking for an employment lawyer in Rotterdam?

In short, as an employer you cannot simply monitor your employees. The privacy of your employees must always be taken into account. Therefore, always contact an employment law specialist. They can check whether you meet the requirements.

Would you like to know more about the means of control you can use as an employer and how you can do this correctly? Please contact Lisa Kloot of LVH Advocaten in Rotterdam. She will be happy to help you implement these means of control, including drafting an internet and e-mail policy and/or a personnel handbook.

Managing director and works council: how to achieve effective cooperation?

Managing director and works council: how to achieve effective cooperation?

The works council is an important body within the organisation. They represent their members and have the necessary powers to do so, such as the right to consent and the right of advice. Effective cooperation makes it easier to implement important decisions within your organisation and ensures that those decisions are also supported within your organisation. So there is every reason to work on the cooperation with the works council, but how do you achieve that? The interests of the works council and the director are sometimes opposed, and the works council is therefore often seen as an opponent of the director. In this article we will tell you how to get closer to an effective cooperation.

Inform yourself in time about the rights of the Works Council

If you are aware of the rights and obligations of the works council, it will be easier for you to cooperate with the works council. After all, there need be no (or at least less) discussion about the content of those rights and duties. Do you have doubts about these rights and how far they extend? Please contact an employment lawyer to have this checked before communicating with the works council. Also give the works council the opportunity to turn to an employment law specialist.

Works council rights

Right to information: This means that the works council is entitled to information to enable it to perform its duties. The works council can request information itself (active information right) and the employer is obliged to provide information about the financial and economic position of the company and the social policy pursued (passive information right).

Consultation right: The managing director and works council are obliged to meet in a consultation meeting within two weeks after a reasoned request by one of them. Compliance can be requested from the subdistrict court.

Right of initiative: The works council has the right to make proposals. The works council cannot force the director to accept these proposals.

Right to advice: The Works Council has a right to advise on certain intended decisions. Section 25 of the Works Councils Act contains a list of decisions about which advice must be requested.

Right of consent: The Works Council has a right of consent to certain proposed decisions. Section 27 of the Works Councils Act contains a list of decisions for which consent must be requested.

Facilities: the works council has the right to call in experts, the right to training, the right to retention of salary while working for the works council and the right to conduct legal proceedings free of charge.

Regularly involve the works council in decision-making

Sparring informally

In addition to the rights under the Works Councils Act that have just been discussed, a director can also involve the Works Council in issues other than those on which it has the right to advise and consent. After all, the Works Council has a stimulating task with regard to subjects that affect the staff, such as terms of employment, working conditions, equal treatment and more. The more regular the consultation with the works council, the better. The works council should not feel like an afterthought; that creates the idea that the works council has no influence on decision-making. Regular and timely involvement of the Works Council creates trust. This can be done simply by planning a fixed moment to consult.

Works council involvement without right to advice or consent

Please note: is the works council involved without the right to advice or assent? As a director, it must be made clear that no advice or assent is requested, but that the director merely wants the works council to think along on a certain subject. Therefore, always assess first whether the subject requires advice or consent. Uncertainty? Lisa Kloot of LVH Advocaten will be glad to help you.

Works council agreement

The powers of the Works Council can also be extended through a Works Agreement. The involvement of the Works Council can thus increase and this can be positive for your organisation. Primary employment conditions, for instance, are not a subject on which the Works Council has the right to advice or consent. However, the managing director could agree with the works council that the terms of employment are submitted to the works council for approval. This could make it easier for the staff to accept.

Formation of a tacit business agreement

Please note: a company agreement can be created tacitly. If the directors repeatedly request consent or advice, in writing, unambiguously and without reservation, on a subject that falls outside the right to consent and advice, a corporate agreement may be created. Therefore, always make a reservation if you, as a director, wish to informally spar with the works council and state that no consent or advice is requested.

Need a lawyer in Rotterdam in the field of works councils and employee participation?

Co-determination is a promising tool for every manager if it is used correctly. Lisa Kloot of LVH Advocaten in Rotterdam is happy to help you set up works councils in the right way within your organisation. Lisa Kloot can help you with the establishment of the works council, the conclusion of a works agreement, as well as she can guide you in the process of advice and consent.

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