The Employer's Right to Direct and Supervise its Employees during Sick Leave

By Simon Söderholm

06-2019

A topical issue has recently been the employer's right to direct and supervise its employees during their sick leave. What is the extent of such right? 

Sweden

An employee's duties toward her/his employer continue to apply during times of sickness. If the employee is not completely incapacitated from any working tasks, she/he must make herself available for working tasks she/he is able to perform despite the sickness. E.g., if a factory worker has a broken foot, she/he must make herself available for desk working tasks which can be performed with a plastered foot.

If the employee is completely incapacitated from performing work she/he is entitled to sick leave, i.e. excused from coming to work. 

However, the employee's duty of loyalty continues to apply. This means that the employee must continue to safeguard the employer's interests during the sick leave. As a consequence, the employee may be obligated to answer urgent questions or minor requests from the employer during the sick leave – provided, of course, that the employee's health condition allows her/him to. 

The employer has no right to supervise the employee's whereabouts during the sick leave. However, if the employer has reasons to suspect that the employee just pretends to be sick, the employer may request an explanation and ultimately a doctor's certificate from the employee.

Denmark

During the sick leave the employee – as in Sweden – is obliged to comply with the duty of loyalty.

During the sick leave the employee must contribute to the fastest recovery possible and is furthermore obliged to avoid health impairments. This means that the employee on sick leave is actually allowed to engage in different activities as long as the activities do not delay the recovery. Posting pictures from holidays or from a shopping day on social media while the employee is on sick leave may cause misunderstandings. However, engaging in recreational activities while absent due to sickness is, depending on the circumstances of the case, not necessarily a violation of the employment. 

If the employer is unsure whether the employee in fact is sick, the employer can from the second day of the sick leave request the employee to hand in a sick note which is composed by the employee's doctor. 

If the employer wishes to receive more information about the employee's work capacity, the employer can request a "fit for work" certificate, which is also composed by the employee's doctor. With a more thorough description of the employee's work capacity the employer will be able to adjust the employee's work responsibilities and tasks. 

No later than 4 weeks after the first day of sick leave, the employer is obliged to hold a "sickness absence conversation" with the employee to clarify how and when the employee will be able to return to work. 

Finland

Not so surprisingly, no unequivocal answer can be given. 

In brief, regardless of the sick leave, an employee may have an obligation, for example, to take care of urgent work assignments or to attend a hearing (e.g., related to a possible termination of employment). It shall, however, be borne in mind that the extent of the direction and supervision shall be evaluated carefully, again, on a case-by-case basis, by comparing the grounds of the sick leave and the employee's work duties.