COVID-19: Guidance for Employers in Denmark

By Mia Boesen, Soren Pedersen

03-2020

The outbreak of Novel Coronavirus (COVID-19) has become a worldwide pandemic and following the first case of COVID-19 in Denmark on 27 February 2020, restrictions were implemented on large parts of Danish society. 

However, lockdown restrictions throughout the country led to a marked decrease of infection pressure and the epidemic curve fell. Following this positive development, the Danish Government announced that it would commence a phased and controlled reopening of selected sectors in Denmark on 6 April 2020. At the time of writing, Denmark is undergoing a controlled reopening and Danish society is slowly transitioning towards a more normal life, although the reopening has been postponed in some areas due to the risk of infection. 

The reopening of Danish society may understandably create some questions for you and your workforce.Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.

The latest updates on the re-opening of the Danish society:

In June 2020, the Danish Ministry of Justice announced a “re-opening” plan for Danish society. The planned reopening of society is continuously monitored and negotiated and is subject to any increased risk of infection. Following increased pressure in recent weeks, several aspects of the so-called “phase 4” of the reopening (which was originally intended to be implemented in August 2020) have been postponed until 31 October 2020, and some parts of Danish society have been restricted once more. 

Amongst other things, this means that: 

  • For events where the organizer is covered by the “sector partnership guidelines”, the limit on attendance remains at 100 people. An increase to 200 people was expected as of 8 August 2020, but has been postponed until 31 October 2020. 
  • For other arrangements, the limit also remains at 100 people (although this limit is only a recommendation in private areas). The Danish police can issue an enforcement notice if groups of over 100 people are gathering in a way that increases the danger of infection. 
  • As of 22 August 2020, the Danish Health Authority recommends that all individuals wear a mask when using public transportation. 
For further information, please see The Trade Council (link) and the Ministry of Foreign Affairs of Denmark (link) websites. 

With regards to travelling, the following guidelines currently apply: 

The rules on entry into Denmark depend on the country from which the individual is travelling. At the time of writing, the majority of countries outside of the EU, the Schengen area and Great Britain are considered  “quarantine countries” (also referred to as “banned countries”). A number of states within the EU are also currently classed as "quarantine countries”. For further information, a full list of countries considered as “open countries” and “quarantine/banned countries” is available  here. 

The following rules apply to the two “groups” of countries:

  • Citizens from "quarantine/banned countries” are only permitted to enter Denmark if they have a so-called "recognizable purpose" (see here for further information on this requirement). Furthermore, citizens from such countries will be required to undergo a COVID-19 test during the 72 hours prior to their arrival in Denmark, and provide the result of this. If this has not been done, the individual must undertake a COVID-19 test at a Danish test facility within 24 hours of arriving and undergo self-isolation for 48 hours after being tested. If the test result is positive, the individual must remain in self-isolation for at least seven days after being tested. The relevant entry forms and certificates can be found here

    It is currently recommended that Danish citizens avoid travel to quarantine countries unless such travel is deemed “necessary”. However, as the Danish Foreign Ministry recognises that business travel is often considered “necessary”, business travellers can currently travel to such countries. It is up to individual companies to assess whether the business travel is a “necessary trip”. If the company deems the trip necessary, it must undertake a risk assessment of the trip in dialogue with the individual employee. The company should also take necessary precautions to minimize the risk of its employees being infected COVID-19. 
  • Citizens from "open countries" (i.e. all countries within the EU, except from those on the “quarantine countries” list) are allowed to travel into Denmark. Furthermore, Danish citizens can travel to these countries and follow the guidelines/rules issued for the particular country. For further information, please see here

Finally, Danish nationals and individuals who are residents in Denmark can enter Denmark regardless of the intended purpose of their entry. For further information, please see here

General initiatives and recommendations from the Danish Government to Danish employers:

The Danish Government has also introduced a number of initiatives (outlined further below) which continue to apply.

Employers should generally ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations as well as a general duty of care towards their employees and should keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees.

As such, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection.

Employers should circulate up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. We recommend issuing a reminder on actions that employees can take to help stop viruses like coronavirus spreading. Such advice may include:

  • Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze.

  • Put used tissues in the bin immediately.

  • Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available.

  • Try to avoid close contact with people who are unwell.

As the country slowly reopens, more and more  employees are returning to work. We further recommend notifying employees where they can access more information, such as such as from the Ministry of Health of Denmark[1], or the national COVID-19 hotline (which can be reached on + 45 7222 7459). For general advice about travel and foreign affairs, the Danish Ministry of Foreign Affairs of Denmark's Citizen Service[2] can be contacted at +45 3392 1112.

As a general rule, the current recommendation is not to travel outside of Denmark to “quarantine/banned countries” unless such travel is “necessary”, cf. further above re. “travelling”.

How should employers react in connection with the reopening of workplaces?

The Danish Ministry of Industry, Business and Financial Affairs has published guidelines on the organisation of offices and workplaces when employers reopen after lockdown. In summary, the Ministry encourages all companies to plan how to support a total or partial reopening of workplaces in Denmark on the basis of the following considerations and guidelines:   

Organisation of work

Amongst other things, employers must organise the work in a way that ensures part of the workforce can continue to work from home. The employer must also ensure that social distancing requirements (i.e. one metre) are met for those employees who do attend work. Further, the working hours of such employees should be arranged flexibly, to ensure that as few employees as possible use public transportation during rush hours, and to minimize the number of employees arriving at work at the any one time. 

Physical meetings (including courses and business travel) should be avoided wherever possible. 

Arrangement of the workplace

The employer must arrange the workplace in a manner that minimises the risk of infection and ensures it is possible to maintain social distancing among employees. This means, among other things, that employees should be seated with (at least) one metre between them and the employer should provide employees with guidelines on how to use the canteen, meeting rooms etc. 

Behaviour and hygiene

The employer must also ensure that there is equipment which allows the employees to sanitize (and that there is enough of it). This includes providing hand disinfectant for all employees and ensuring that the cleaning of the office is done properly and in accordance with the guidelines. 

Providing information to employees

Furthermore, the employer must inform employees about the infectiousness of COVID-19 and the authorities' recommendations on how to avoid the spread of the disease.

Can employers request or require information from an employee, customer of workplace visitor about potential or actual exposure to the virus?

The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment.

Danish employers are under a duty to provide a safe and secure working environment under the Health Environment Act. The collection of such data may be necessary to protect the health, safety and welfare of other employees. Moreover, Danish employees are subject to a general obligation to notify their employer if they have been infected with coronavirus, or if they suspect they may have been infected, because this is an infectious disease. Employers are, on the other hand, generally not allowed to ask the employees about any symptoms of diseases, .c.f. the Health Act. Any such data must be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. We set out below the position in Denmark, but also have available to you our cross-jurisdictional Q&A on important HR data related questions available here. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country. 

On 20 March 2020, the European Data Protection Board (the European data protection advisory body, formed of representatives of national data protection authorities) (the "EDPB") published a formal statement in relation to COVID-19.  In relation to whether an employer can disclose that an employee is infected with COVID-19 to their colleagues, the EDPB advises that this should be done only where necessary (e.g. in a preventive context) and where national law allows this. In such case, the concerned employees should be informed in advance and their dignity and integrity should be protected. 

The Danish Data Protection Authority (the "DPA") has also issued very brief guidelines on the employer's ability to collect and disclose information about its employees in relation to the COVID-19 outbreak. The  guidance states that an employer's ability to ask employees questions related to COVID-19 and employees' duty to inform their employer is governed by the applicable employment and labour law legislation.

In line with that legislation and Danish data protection legislation, an employer can record and disclose information that is not specific enough to be considered health information, such as that an employee: 

  • has returned from a so-called “risk area”;

  • is in home quarantine (without stating the reason; or

  • is ill (without stating the reason).

Further, it is permissible to record and disclose health information (e.g. that an employee is infected with coronavirus) if the processing is legitimate and limited to what is necessary.[3] The processing will only be legitimate if:

  • there is a good reason to collect or disclose the personal data in question;

  • it is necessary to specify the personal data (i.e. could the purpose be achieved by "telling less"); and;

  • is necessary to name the relevant employee;

The Danish DPA has not identified the relevant legal basis for the employer's processing of health information on its employees in relation to the COVID-19 outbreak. However, in Denmark the employer should be able to process such health data by relying on Article 9(2)(b) in GDPR and possibly Section 12 of the Danish Data Protection Act on the basis of the health and safety duty referred to above. 

Even though the employer may not generally ask the employees for details of their symptoms and cause of illness, we consider it legitimate and reasonable for the employer to ask employees to inform them if they are experiencing symptoms, due to the severity of the COVID-19 outbreak and with the employer's responsibility to ensure a safe workplace pursuant to the Work Environment Act. 

Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site. 

  • Where this applies, the employer should as a starting point seek to provide generic reassurance to the client / customer.

  • If this does not suffice, employers should consider whether there are grounds for the employer to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties, if requested and if they are happy to do so.

  • Unless there is a clear legal obligation on the employer to do so, and these may exist in sector specific laws, employee consent is likely to be the only applicable legal basis for sharing such information with third parties. To be valid, consent must be freely given.

  • The employer must not oblige employees to provide this information to third parties and consider carefully what, if any, further action to take if the employee refuses to do so. There is a risk that where the employer requires employees to attend client sites, any employee consent to the provision of information in order to access those sites would not be freely-given and therefore not valid.

The position regarding European data privacy rules and how they impact information relating to COVID-19 is developing.  A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required.  The position will need to be kept under review as the situation evolves and further guidance becomes available.

What should employers do if an employee is absent or infected?

Infected employees

If an employee is infected with COVID-19, the employee should stay at home until formally declared well again.

Where a working environment committee has been established, the committee should be informed and the work environment risk impact assessment and action plan should be followed. Where the employer is bound by collective agreement(s), trade union representatives should also be informed (as trade unions have a general right to information on health and safety issues). 

If COVID-19 materially impacts the employer's business operations necessitating the employer to, for example, change working hours or engage agency staff, engaging the employees or trade union representatives (if any) early on is advisable. When informing working environment representative(s), members of the working environment committee and/or employees/trade union representatives (if any), employers must be very careful to balance the privacy of the individual(s) concerned with the public interest in avoiding the spread of the virus. However, since COVID-19 is classified by the Danish Government as a disease threatening public safety, our assessment is that employees are allowed to provide the identity of COVID-19-infected employees to the safety delegate(s). 

An infected employee will either be entitled to sick pay or the state sickness benefit (if on sick leave and unable to perform work). Please see below for further information on the new rules re. reimbursement.

In addition to the protection of health, the employer should develop a plan going forward as to how and whether operational processes can be maintained. 

Where possible, the employees should work from home regardless to contain the risk of infection.

Potentially Infected Employees

Where there is a reason to believe that an employee poses a risk to the health of others (for example, because they have been in a risk area or had close contact with an infected person), the employer should request the employee to undergo a medical examination. Until the results are available, the employee could be either instructed to work from home or, where working from home is not an option, released from work duties with full pay. Please see below for further information on the new rules regarding reimbursement.

Bulk absentees

If there are too many absentees, employers can order the employees who are in the workplace to work temporary overtime subject to individual agreement, applicable laws and collective agreement(s). Employers can also consider engaging temporary staff and agency workers. 

Refusals to work or travel

Employees are obliged to perform work and unlawful absence from work due to fear or abstract risk of an infection may constitute grounds for summary/immediate termination. As such, employees cannot refuse to attend nor perform work from home or refuse to travel (unless the Danish Ministry of Foreign Affairs has issued a travel restriction). However, we would recommend that employer's respect an employee refusal to travel if the employee is not comfortable with the travel.

What are employers' obligations where offices are partially or fully closed?

As a general rule, employees will remain entitled to full salary and benefits in accordance with their employment contract and applicable laws and collective agreements. Where possible, employees should be instructed to continue to perform their work duties, but from home.

Employees on sick leave are entitled to sick pay or state sickness benefit, and quarantined employees are also generally entitled to full salary during such quarantine. Please see below for further information on the new rules regarding reimbursement.

In terms of directing employees to take holidays, there is an exemption to the mandatory notices under the Danish Holiday Act if there are "special circumstances". Special circumstances may exist if, for example, the circumstances could lead to the employer's financial breakdown. If the company's employees can work from home, and this will not (to a great extent) affect the operation of the company, it is likely that the employer will be required to give notice. However, where an employer's operations are reduced or the company risks a financial breakdown because employees cannot work from home, it is likely that it will be possible to require employees to take accrued holiday with a shorter notice period.

We believe that many Danish employers have, or will, claim that the above requirement (i.e. risk of financial collapse) is fulfilled, and that it is therefore possible to instruct employees to take any accrued holiday without observing the otherwise applicable notice requirements. However, employers cannot require that employees take non-accrued unpaid holidays, unless this is in relation to the salary compensation plan passed on 24 March 2020 (outlined further below).

What initiatives have been introduced by the Danish Government in response to COVID-19?

Changes to the Danish Sickness Benefit Act:

On 17 March 2020, the Danish Government passed a bill amending the Danish Sickness Benefit Act (L135) as follows:

  • Sickness benefit reimbursement may be granted to employers for salary or sickness benefits paid during the so-called "employer period" (i.e. from the first day of sickness absence for employees who are unable to work as a result of their COVID-19 sickness). Under the current rules, the employer is generally only entitled to reimbursement after 30 days of continued sickness (which is still the case for non-COVID related sickness). 
  • Furthermore, it is proposed that an employer may be entitled to reimbursement where the employee is unable to perform their work due to a recommendation from the Danish health authorities, e.g. in respect of certain groups who must stay at home due to COVID-19 (quarantined employees). However, we note that the employee must be unable to work from home. This is an exception to the general rule that the employer will only receive reimbursement in the event of an employee's illness.
  • However, an employer will not be entitled to reimbursement for an employee who does not fulfil the standard employment requirements outlined in the Danish Sickness Benefit Act. The requirements are as follows:
    • On the first day of absence, the employee must have been continuously employed by the employer for the eight weeks prior to the absence, and performed work for at least 74 hours during this period.
    • In the event that the employee is working from home in whole or in part, the sickness benefit will have to lapse completely or partially.
  • It is proposed that the scheme should apply to public and private employers. As this is a temporary initiative introduced in response to COVID-19, the proposed bill includes a cessation clause, which states that the temporary rules are proposed to cease on 1 January 2021. 

Initiative regarding more flexibility to the rules on reduced working hours

On 12 March 2020, the Danish Government implemented changes to increase flexibility on the rules regarding reduced working hours:

  • The current rules on division of labour/reduced working hours still apply.

  • The Minister of Employment has made the scheme more flexible. As such, the deadlines for application have been made shorter, and it is now possible to switch to another of the applicable agreements of a division of labour, when a cycle in a division of labour is completed. The relevant application form (in Danish) can be found here: https://www.klxml.dk/KLB/Blanket/Gaelder/ab292.pdf.

Salary compensation from the Danish state

A three-party agreement was agreed between the Danish Government and the Danish labour market's parties on 15 March 2020, and on 24 March 2020, a final bill was passed on the salary compensation scheme. The Danish parliament has recently agreed to extend the salary compensation scheme until 29 August 2020. Applications for coverage by the scheme may be filed through www.virk.dk no later than 20 September 2020.

  • If an application for an extension is filed between 9 July – 29 August 2020, no salary compensation will be paid for 21 calendar days per employee during that period. 
  • The 21 calendar days must be included in the application, but such days will not be taken into account when considering the requirement on staff levels under the scheme (e.g. for the duration of the period that the company is seeking salary compensation, (i) a minimum of 30% staff, or (ii) more than 50 employees on average must be sent home).
  • During the 21-day period, the employees must continue to work or take holiday. 
  • The 21 days will automatically be deducted from the compensation statement, and as such, the company does not need to specify these days when applying.
  • If the company requires the employees to return to work during the 21 days, it will not be permitted to send the employees home (e.g. on holiday) at a later date and receive salary compensation for the holiday period.

Under the agreement, employers are entitled to salary compensation under certain conditions. The main points of the agreement are as follows:

  • The agreement covers both monthly paid and hourly paid employees, in addition to both employees who are covered by a collective bargaining agreement and those who are not.

  • The Danish state provides salary compensation of 75% to 90% of the monthly salary, for employees who are sent home due to extraordinary economic downturn due to Covid-19:

o 75% for monthly paid employees (subject to a salary cap of DKK 30,000 per month for (salaried) monthly employees); and

o 90% for hourly paid employees (subject to a salary cap of DKK 30,000 per month for hourly paid employees).

  • The agreement is applicable to companies who would otherwise terminate (i) at least 30% of their staff or (ii) at least 50 employees.

  • It is a requirement that the company does not terminate any employees while receiving salary compensation.

  • It is a requirement that the employees do not work during the period and receive full salary during the period (cf. however below).

  • The employee (for whom the company applies for salary compensation) must take up to five days off without salary in connection with the compensation period. The employee can choose whether to use accrued holidays and/or time off in lieu during this time. If the employee does not have any accrued holidays and/or time off in lieu left, the employee must take the period off with no salary. The number of days without pay is calculated pro rata, based on the proportion of the period between 9 March – 29 August 2020 that the employee has been sent home. The company cannot obtain compensation for any of these days. (Please note that where companies apply for an extension of salary compensation from 9 July 2020 onwards, no salary compensation will be paid for 21 calendar days for each employee. The 21 calendar days must be included in the application, but they are not included in the calculation of the 30 %/50 employees.)
  • The salary compensation scheme can be combined with an (agreed) salary reduction, if this (i) was agreed before 9 March 2020, or (ii) is agreed with either a majority of the affected employees or the employee representative before the employer applies under the compensation scheme. In situation (ii), the employees will not be deducted the (up to) five days without salary mentioned above.

  • The compensation agreement is applicable from 9 March 2020 and until 29 August 2020.
  • Applications can be filed via: 
    https://indberet.virk.dk/myndigheder/stat/ERST/Loenkompensation
  • For further information, please see: https://www.twobirds.com/en/news/articles/2020/denmark/covid-19-lovforslag-om-lonkompensation-til-arbejdsgivere-vedtaget

Act on postponement of annual leave due to COVID-19

A new act on postponement of annual leave due to COVID-19 was passed on 2 April 2020. According to the new legislation:

  • If significant, unforeseen operational considerations are necessary in connection with COVID-19, holidays which cannot be taken during the holiday year may be postponed to the subsequent holiday year. Postponement of leave can be made either by agreement between an employee and an employer or following the employer's instructions.
  • Any financial loss of the employee resulting from the postponement must be reimbursed by the employer.
  • If holiday allowance has been accrued during the current 2019/2020 holiday year (ending 30 April 2020), the employer must notify the "Holiday Allowance Info" ("Feriepengeinfo") that the holidays have been postponed.
  • For further information (in Danish) please see: https://www.retsinformation.dk/Forms/R0710.aspx?id=213906

Emergency tax legislation - New temporary payment deadlines

Currently, Danish companies have to pay withheld tax and labour market contribution in monthly instalments. In order to provide more liquidity to Danish companies, the Danish government has passed legislation under which companies are entitled to postpone payment of payroll tax and labour market contributions for four months, and postpone the payment deadline for VAT. 

Help package for Danish companies:

 
The Danish government and Danish Parliament have agreed to cover some of the fixed costs of companies where they no longer have sufficient resources due to the COVID-19 crisis. The scheme is in force until 8 July 2020. Under the suggested compensation programme, companies will receive compensation for their documented fixed costs, such as rent, interest and contract-bound expenses (such as leasing), during a period where the company is exposed to a large drop in revenue. No formal bill has been proposed or passed yet, but it is expected to be passed without further implications.
The proposed compensation is based upon the following principles: 
  • Companies across all industries are entitled to receive the compensation.
  • The compensation is targeted at companies with a large drop in their revenues (i.e. more than 40%). 
  • The compensation is targeted at fixed costs and will cover between 25% and 80% of such costs. 
  • The compensation will cover up to a three-month period, and will be payable as soon as possible. 
  • If the company’s revenue has dropped significantly less than expected, the compensation will have to be repaid. 
     
    The level of proposed compensation will be as follows: 
  • 25% if the drop in revenues is between 40 and 60%; 
  • 50% if the drop in revenues is between 60 and 80%;
  • 80% if the drop in revenues is between 80 and 100%; 
  • 100% if the company has been prohibited from opening during the period.

We also note that the Danish Parliament agreed to establish a new temporary aid package for fixed cost on 15 June 2020. The aid package will apply from 9 July 2020 to 31 August 2020, and is only applicable for companies which are subject to COVID-19 related restrictions such as:

  • a prohibition against opening (also if this is revoked as of 8 June 2020);
  • prohibitions against gathering in large groups over 500 people; 
  • closure of the Danish borders; and/or
  • the travel guidance from the Danish Ministry of Foreign Affairs. 

Act on tax-free loans

A new bill allowing employers to obtain interest free loans (for the amount of informed VAT and tax on labour costs) and the advanced payment of TAX credits etc. in connection with COVID-19 has been passed. Requests should be made to The Danish Customs and Tax Administrations on or before 15 June 2020, and any loans must be reimbursed by no later than 1 April 2021 (via the company’s tax account).

Companies that:

  1. Use the quarter as a tax period (under section 57(3) of the Danish Act on VAT (in Danish: "Momsloven")): Can receive a loan for the amount of the company's stated tax liability for the fourth quarter 2019 (which was due on 2 March 2020).
  2. Use a half year as a tax period (under section 57(4) of the Danish Act on VAT): Can receive a loan for the amount of the company's stated tax liability for the second half-year of 2019 (which was due on 2 March 2020).  
  3. Provisionally calculate and pay tax on the basis of their labour costs (under section 6A of the Danish act on Tax on Labour Costs etc.): Can receive an amount corresponding to the company's provisionally stated calculation for first quarter of 2020 (which was due on 15 April 2020).
  4. Have stated tax on labour costs for the 2019 income year (under section 6B of the Danish Act on Tax on Labour Costs etc.): Can receive an amount corresponding to one quarter of the tax on the profit for the income year 2019 as a tax free loan.

Amongst others, the act does not apply to public institutions or companies that (i) are in bankruptcy proceedings, (ii) are undergoing reconstruction treatment, (iii) are in liquidation or compulsory dissolution and/or (iv) do not meet the requirement to receive state support.

Payment of the frozen holiday allowance

Due to the transition to the New Danish Holiday Act (which will commence 1 September 2020), all employees employed in the Danish labour market between 1 September 2019 and 31 August 2020 will have accrued holiday allowance which would have been considered as frozen until the employee leaves the Danish labour market. However, on 15 June 2020, the Danish Parliament agreed to pay three weeks (of a total of five weeks) of the frozen holiday allowance. This is designed to encourage Danish employees to spend money and thereby help “boost” the Danish economy. 

It has not yet been clarified how the payment procedure will be managed, but such procedure will not affect the obligations for employers (which were already in place). The Danish employees will be able to apply for the amount corresponding to three weeks holiday allowance in October 2020. 

 

Where can employers and employees access local and national advice?

Last reviewed: 17 August 2020