13.03.2020

News

COVID-19: Frequently asked questions and answers

UPDATED 25 MARCH 2020

COVID 19 - also known as the Corona Virus - undoubtedly affects the Danish labour market and raises a wide range of issues related to HR and employment law as well. This newsletter answers the most frequently asked questions about COVID-19.

Unable to find the answer to your question below? Please contact us at ansaettelsesret@njordlaw.com. We are ready to advise on the employment law implications associated with COVID-19 and the Danish government's latest actions.

1. Should you, as a private employer, send your employees home?

All employers must ensure a healthy and safe working environment. Therefore, it is essential that you, as an employer, decide how to provide this best and at the same time, limit the risk of spreading infection of COVID-19.

The Danish government has recommended that private employers follow the example of the public sector and – to the widest extent possible – send their employees home to work from home.

It is the employer who, under the rights of management, must assess who can work from home and who will be at work.

NJORD recommend that you, as an employer, consider alternative solutions where employees, if possible, are sent home to work from home. Alternating home working days may be proposed to minimise the number of employees at the workplace and individual agreements on the settlement of holiday leave, time off and overtime hours is another proposed approach.

If, as an employer, you choose to send employees home, employees are entitled to pay. Over the next few days the Danish government will regularly provide support packages to the companies that are forced to close the workplace - especially for shops, cafes, restaurants, etc. - to try to avoid employees being laid off.

As this is a unique situation, it can be assumed that there is wider access for the employer to ask employees to perform work tasks which do not typically fall within the employee's job description.

2. What to do if, because of COVID-19, you do not have tasks for your employees?

The Danish Parliament has now passed a law on salary compensation in connection with COVID-19.

> Read more about the new law and conditions on how to be covered by this scheme here

Please note that it is not possible to combine an agreement on distribution of work while some employees are sent home on the salary compensation scheme.

Unfortunately, some companies may have to terminate employees if the current situation affects production, customer tasks and the like.

The general rules of termination and factual assessments apply in these cases.

As an employer, special attention should be paid to the rules of the Collective Redundancies Act, if a large number of employees are terminated over the next period.

It is also worth paying attention to the possibility of entering into an agreement on the distribution of work, where employees for some time reduce work hours and corresponding pay. At the same time, they can receive daily allowances for the number of hours they have cut back.

This approach can be a means of avoiding redundancies.

If collective agreements do not cover the employees, an agreement can still be reached at work on the division of labour. At this time, it is a condition that everyone in the company or business department agrees to and enters into the agreement.

An agreement on work-sharing can only be concluded as an alternative to redundancies. Therefore, no redundancies may be made during the works-sharing. It is also a requirement that in the work-sharing agreement the employees are given a release opportunity so that they can terminate their positions without notice to take other work with longer working hours.

The Danish government is introducing new legislation to ensure the agreement on work-sharing may be initiated immediately upon notification to the job centres. This agreement is made more flexible to open up for changing between types of work-sharing.

Employees must be aware of whether they meet the conditions for receiving supplementary unemployment benefit and must with their unemployment insurance fund make themselves aware of which requirements they must meet during the time they receive unemployment benefit. At present, however, employment efforts are suspended. This means that employees do not have to actively look for jobs during the periods when they are on unemployment benefits.

The situation is constantly changing and NJORD is constantly monitoring the new information in this area.

NJORD recommend contacting a legal adviser if you are considering dismissing employees or entering into an agreement on the division of labour

3. What do we do if the workplace has been forced to close down due to the government’s announcement to close restaurants, cafes, shopping centres etc.?

On 18 March 2020, the Danish Parliament presented two new temporary compensation schemes:

Compensation for corporate fixed expenses

The announcement is that the government will provide support to the companies that have been required to shut down by subsidizing some of the fixed expenses that the company no longer has earnings to cover.

• The scheme targets companies with a turnover drop of more than 40%
• The compensation targeted fixed expenses will amount to between 25 and 80% of this
• The compensation can cover up to three months and is paid out as soon as possible
• Companies, who are required to be fully closed by order, will during this period be compensated, corresponding to 100% of the fixed expenses.

Compensation scheme for self-employed and small businesses

The government will also provide compensation to the self-employed, who experience large declines in their turnover.

• The scheme targets self-employed people who experience more than 30% decline in turnover
• It is a requirement that the company has no more than 10 full-time employees
• The compensation represents 75% of the loss of revenue, but a maximum of DKK 23,000 per month
• If the self-employed person has an employed spouse, the compensation may amount to 100% of the loss of revenue, but a maximum of DKK 46,000 per month.

Both schemes are cash handouts and not loans.

The government is in the process of negotiations, and the specific model has therefore not been finalized.

We will update our newsletter as soon as the government comes up with a bill.

4. Are employees entitled to pay if they are quarantined?

If the employee is ill, the employee has the right to regular sick pay.

If the employee is quarantined or isolated by the authorities, this is presumed to be the equivalent of illness.

To the extent possible, the employee must continue to work from home as long as the employee is not ill.

The employer may request proof that the employee has been quarantined or has been recommended to home quarantine.

On 17 March 2020, the Danish Parliament passed new emergency legislation amending the sickness benefit law. This means that companies may be entitled to sickness benefit reimbursement from the employee's first day of sickness. This will suspend the 30-day employer period.

It requires the employee to be ill and suspect that he or she is infected with COVID-19. Furthermore, it is a condition that the employee is incapacitated as a result hereof.

If the employee is recommended to home quarantine by the health authorities because the employee has been abroad and the employer complies with this recommendation, the employee is entitled to salary. In this situation, the employer is also entitled to sickness benefit reimbursement from day 1, provided that the employee cannot perform his/her duties at home.

5. Can an employee refuse to show up for work for fear of being infected?

No. Only in exceptional situations can an employee demand to stay at home, but as a rule, there must be a danger to the employee's life or health.

If the employee's cohabiting partner or children living at home are particularly at risk, for example, due to weakened immune systems, it is assumed that the employee has the right to stay at home to avoid infection. However, this is without pay, unless it is work from home.

If the employee believes that his or her life or health is at risk, the employer may – together with the employee – contact the health authorities about this. It is important to ensure that the employee's view is not based on a misunderstanding of, for example, guidance from the authorities.

If the employee does not have a valid reason for refusing to show up for work, this can be considered a no-show.

6. Can employers require employees to take holidays?

This holiday year ends on 30 April 2020, and many employees will already have spent their holiday leave or planned how to use whatever remains thereof.

For already planned holidays, this holiday leave may be taken. The employer is entitled to maintain the time of planned holiday leave, even if the employee cannot leave for planned vacation destinations.

The exception is the usual rules on illnesses such as holiday barriers and waiting days for illness after the beginning of the holiday.

For unplanned, earned holiday leave, the starting point for early warning is the usual warning rules of three months for main holiday leave and one month for residual holiday leave.

If a company's operations are greatly disrupted by COVID-19, including significantly decreased order intake or similar, employees can be sent on holiday leave without notice, but only if they have residual paid holiday leave.

This must be assessed in each specific situation and may differ from company to company. We recommend contacting an advisor for a detailed assessment if requiring the employees to take holiday leave without notice is an option under consideration.

7. Can the employer decide where employees go in their leisure time?

The general rule is that this is for the employee to decide.

NJORD recommend that employers draw up written guidelines on how employees should behave if they are going on holiday abroad.

Any employer should recommend that all employees follow the Danish Ministry of Foreign Affairs’ guidelines. The employer’s written guidelines should specify the consequences of non-compliance with the guidelines.

On 17 March 2020 the Ministry of Foreign Affairs updated their guidelines.

Onwards, it no longer has any significance where in the world the employee returns from. All, who have come home from travels abroad, are encouraged to stay at home for 14 days.

If an employee defies the Ministry of Foreign Affairs’ guidelines and travels to a risk zone and then gets sick or is quarantined, this can be considered a self-inflicted illness and, therefore, absence without pay.

In aggravating circumstances, the act can even lead to termination or instant dismissal.

The employer may also decide that any employee who has travelled ignoring the Ministry of Foreign Affairs’ guidelines must subsequently stay at home for 14 days without pay.

If an employee travels from Denmark to a safe area and changes subsequently occur, including an entry ban to Denmark, cancelled flights or similar, this will be the employee's own risk.

The employee is legally absent if he/she is stranded abroad, as no trip has been made ignoring the Ministry of Foreign Affairs’ guidelines.

On the other hand, the employee is not entitled to pay, as it is the employee’s sole responsibility to ensure that she/he is able to show up for work on the day after the end of the holiday leave. Of course, it is possible to enter into an individual agreement with the employee on the extension of leave with or without pay, time off in lieu or work from home from abroad to the extent possible.

If the employee falls ill or is imposed a statutory regulatory quarantine abroad, this must be equated to the rules on sick pay in Denmark.

8. Should you, as an employer, cancel business trips?

The employer is responsible for the employee during business trips.

Therefore, the employer cannot require the employee to travel to a risk area as this would be contrary to the health and safety obligations. The Ministry of Foreign Affairs now advises against all travel abroad. The Ministry of Foreign Affairs’ guidance is provisionally valid until 13 April.

If an employee is nevertheless sent off, the employer must bear all costs of any departure or entry ban, quarantine, illness and the like during the employee's travel.

9. Can employees stay at home if they have childcare issues?

This is especially a difficult situation for single parents and families with young children because the Danish authorities have closed schools and institutions and even recommend that the grandparents, who as elderly people, are a group of people at particular risk if they get infected by COVID-19, do not take care of the children.

Although the legal starting point is that it is the employee's responsibility to find childcare options, it is suggested that the employer and employees are as flexible as possible. Special individual agreements may be entered into, including holiday leave, leave with/without pay, a temporary part-time arrangement, flexible working hours, the employee working at staggered hours, if possible, etc. There are many possibilities.

It is not a reason for instant dismissal, if the employee is unable to find care facilities and, therefore, cannot attend work as this is a unique situation.

Without an individual agreement with the employer, the employee is not entitled to pay wages. Therefore, the absence can lead to a reduced salary.

10. Can employees bring their children to work?

The employer decides whether the employee may bring her/his children to work due to a lack of childcare options.

Employers must pay particular attention to the new ban on assemblies of more than 10 persons and the general obligation to ensure a healthy working environment.

If the employer allows certain employees to bring their children to work, there may be a risk of exposing these and the other employees to an increased risk of infection.

11. Can employees stay home from work because of issues with public transport?

No. It is the employee's responsibility to ensure that they get to work on time.

The Danish government recommends avoiding public transport during rush hour. As an employer, you must provide a healthy and safe working environment. Therefore, you may consider increased flexibility enabling employees to avoid using public transport during rush hour.

However, employees are primarily obliged to try to use other forms of transport, such as their car, bicycle etc.

If the employee is delayed due to transport issues, this is considered a valid excuse for one’s absence without the right to pay during the absence.

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