COVID-19 gives rise to a number of questions in connection with the handling of employees particularly after Prime Minister Mette Frederiksen’s announcement on 11 March 2020 that the Government implemented a number of social measures in order to reduce the risk of infection.
The first question that arises is whether the employee is entitled to be paid during quarantine/isolation. In this relation, it is important to keep quarantine/isolation dictated by the authorities separate from the employee’s wish to go into voluntary isolation. On 3 March 2020 the authorities recommended that any person who has travelled from one of the special risk areas is to stay at home for 14 days. The risk areas are updated regularly on the website of the Danish Ministry of Foreign Affairs.
The employee cannot decide to go into voluntary isolation out of fear of becoming infected with COVID-19. This will be considered unlawful absence and the employer is entitled to make deductions from the pay and such absence may also have consequences in relation to employment law.
If employees are put in quarantine/isolation dictated by the authorities due to infection with COVID-19, salaried employees are entitled to their usual salary in the 14-day period that the employee must stay at home. This ought also to apply if a doctor has recommended that the employee stays at home due to the risk of being infected. The employer may require that the employee works from home if it is technically possible and the employee is not ill. In case of hourly paid employees covered by a CBA, the relevant CBA will govern whether the employee is entitled to be paid in the period that the employee stays at home. Certain types of employees are not entitled to sick pay and in such cases it must be assumed that such employees cannot claim payment in the period that they stay at home.
If employees are in quarantine/isolation due to infection with COVID-19 and are absent owing to illness, the general rules on absence owing to illness and sick pay apply. In this situation, the employer will be entitled to reimbursement of the expense for sick pay. Folketinget is fast-tracking a new special act which will suspend the period in which the employer cannot claim reimbursement. This means that the employer can be reimbursed from the first day of sickness if the employee is infected with COVID-19 or put in quarantine/isolation by the authorities.
Holidays and special holidays
Under the Danish Holiday Act, the employer may request that any remaining holidays be held by giving one month’s notice. Many employees have not taken all of their holidays and the question is with what notice the employer may request that such holiday be taken. This is called remaining holiday and it may be requested that it be taken by giving one month’s notice unless the employer and the employees agree on a shorter notice.
However, the question is whether the current COVID-19 health crisis and its social consequences entitle the employer to request that holidays be taken by giving a shorter notice than one month. The question at hand is whether “significant, extraordinary and unforeseeable conditions of importance to the employer’s operations” exist. If such special circumstances exist, the employer may request that such holiday be taken by giving a shorter notice and in some situations immediately. It is our assessment that the current health crisis and the Prime Minister’s announcement on 11 March 2020 of the lock-down of large parts of the Danish society will be deemed special circumstances which motivate giving notice of holidays to be taken of less than a month.
Many employees are entitled to special holidays. Taking special holidays is not covered by the rules of the Danish Holiday Act and as a result they are only governed by contracts and/or day-to-day employment practices. The starting point is that notice may also be given that such special holidays are to be taken immediately due to the current health crisis.
Time off in lieu of overtime payment
Most CBAs contain provisions on arrangements in respect of time off in lieu of overtime payment. In addition, time off in lieu of overtime payment may be agreed in the employment contract as a supplement to or instead of overtime payment. Generally, a notice is required prior to the employer’s request for the employee to take time off in lieu of overtime payment. The health crisis and its consequences must, however, be assumed to constitute the basis for giving the employee notice of taking time off in lieu of overtime payment immediately. As a starting point this will apply to employees covered by a CBA and employees with individually agreed arrangements in respect of time off in lieu of overtime payment. Changes to existing work schedules will as a starting point require a notice under the CBAs unless it is possible to agree on a shorter notice with the employees.
If on the basis of the authorities’ recommendations the employer decides that employees are to stay at home after travelling abroad, the right to be paid depends on the area(s) in which the employees have travelled.
If the employee has travelled to one of the special risk areas before 3 March 2020 or before the area was allocated the status of a special risk area, the employee is entitled to be paid in the period that the employee stays at home. If it is possible for the employee to work from home, the employer may require that the employee carries out work in the period that the employee stays at home.
Employees who have travelled to a special risk area after 3 March 2020 or after the area was allocated the status of a special risk area must be considered as having to stay at home for 14 days due to contributory negligence. If the employees become ill or is put in quarantine/isolation dictated by the authorities, the employees are as a consequence of their contributory negligence and as a starting point not entitled to sick pay. Having acted contrary to the recommendations of the Danish Ministry of Foreign Affairs may also have consequences in terms of employment law.
A special situation arises if the employee is put in quarantine/isolation while on holiday and cannot carry out his or her duties. If the area was not a special risk area at the time of departure, the employees will be entitled to be paid. If the area was a special risk area before departure, the employee will not be entitled to be paid. In the circumstances, it could also be unlawful absence which may have consequences in terms of employment law for the employee in question.
Dismissal of employees
The health crisis and the measures that the authorities have implemented may necessitate reduction of working hours (and pay) or dismissals. A reduction of working hours will as a starting point be compared with a dismissal.
In some CBAs and the provisions of the Danish Salaried Employees Act it is a requirement that the dismissal of each employee must be fair. Fair reasons include shortage of work, redundancy etc. The employer must prove that (i) there is a financial decline and that (ii) this decline motivates dismissal of one or more employees. If the employer only dismisses one employee as a result of the financial decline, the courts will normally require a higher standard of evidence.
If it is necessary to dismiss a large number of employees, such dismissal may be covered by the rules on mass dismissals. This means requirements for consultation with the employees and notification of the authorities. Employees covered by a CBA may be covered by rules which make it possible for the employer to lay off employees temporarily due to shortage of work and supplies. In addition, the CBAs may also contain rules on short-time working which the employees may consider using in a situation where financial activities are declining.
The authorities have implemented a simplification of the rules on short-time working. The purpose is that the employers may reduce the employees’ working hours for a temporary period and the employees may then be eligible for complementary unemployment benefits if the general requirements have been met. The simplification means flexibility in relation to the establishment of short-time working arrangements and the arrangements may be implemented the instant that notice of them has been given to the local job centre.
Data about infections with COVID-19 constitutes data concerning health which qualifies as sensitive personal data. Processing of such data requires a special basis for processing. As a starting point, employers must not collect and disclose data concerning health without the employee’s consent. As a result, the employers must keep in mind that they do not register if the employees state that they are infected with COVID-19 and any e-mails from employees containing information about COVID-19 must be deleted.
On 5 March the Danish Data Protection Agency stated that an employer may register and disclose data which is not specific enough to be considered data concerning health when rendered necessary in a specific situation. This may be if an employee has returned from a so-called “risk area”, is in quarantine/isolation at home or is ill. It is essential that the employee does not state the reason for the quarantine or isolation or the illness.
– 0 –
Skau Reipurth & Partnere provides specialist advice in all areas of employment and labour law and personal data. Please contact attorney Bo Enevold Uhrenfeldt (firstname.lastname@example.org) or attorney Frederik Brocks (email@example.com) if you have any questions to the above.
17 March 2020