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. Based on the World Health Organization’s declaration that this is a public health emergency of international concern, the Ministry of Health of Denmark has (at the time of writing) raised the risk of the virus spreading within Denmark to high[1] and implemented restrictions on large parts of the Danish society. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.

What are employers' obligations in respect of COVID-19?

The Danish Prime Minister has announced that the majority of the public sector will close down temporarily until at least 13 April 2020, and the authorities strongly encourage private companies to close down and ensure their employees safety, (e.g. by letting them work from home temporarily as well). 

Following this, the Danish Government put forward a number of initiatives, discussed further below. On 17 March 2020, the Danish Parliament passed a bill with changes to the Danish Epidemic Act which among other things includes a possibility for the Prime Minister also prohibited gatherings of Health more than 10 people at a time, which has affected both companies and employees. 

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. The Danish Health Authority does not recommend the use of face masks or other protection equipment for healthy civilians as a way to prevent the spread of disease, since there is no proof of its efficiency. Employers should instead 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 action 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

Currently, a vast majority of private employees are, however, working from home. We further recommend notifying employees where they can access more information, such as such as from the Ministry of Health of Denmark[2], or the national COVID-19 hotline + 45 7222 7459. For general advice about travel and foreign affairs, the Danish Ministry of Foreign Affairs of Denmark's Citizen Service[3] can be contacted at +45 3392 1112. Generally, the current recommendation is to not travel outside of Denmark.

Can employers request or require information from an employee 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. 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. 

The Danish Data Protection Authority (DPA) has 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”;

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

  • that an employee 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.[4] The processing will be legitimate only 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 also Section 12 of the Danish Data Protection Act on the basis of the health and safety duty referred to above. 

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

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, it 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 (trade unions having 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 further below on the new rules re. reimbursement.

In addition to the priority of health protection, the employer should develop a plan going forward as to whether and how 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 other employees, 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 further below on the new rules re. 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. Thus, employees cannot refuse to attend nor perform work from home, nor can employees refuse to travel. This is unless the Danish Ministry of Foreign Affairs has issued a travel restriction for the relevant destination which is currently the case. We would, however, regardless 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 starting point, 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 who are on sick leave are entitled to sick pay or state sickness benefit and employees who are quarantined are generally also entitled to full salary during the quarantine. Please see further below on the new rules re. 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, the employer will most be required to give notice. However, for companies where 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 that accrued holiday is taken with a shorter notice period.

It is our impression that Danish employers on a mass scale have or will adopt the position that the above requirement (risk of financial collapse) under the current state of things is fulfilled and that it is therefore possible to instruct employees to take any accrued holiday without observing the otherwise applicable notice requirements. However, the employer cannot require that the employee takes 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:

The Danish Government has on 17 March 2020 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" from the employee's first day of sickness absence for employees who are unable to work as a result of his/hers own sickness due to COVID-19. Under the current rules, the employer is as the main rule only entitled to reimbursement after 30 days of continues sickness (still the case for sickness not related to covid-19). 

  • Furthermore, it is proposed that an employer may be entitled to reimbursement in the event that the employee is unable to perform their work due to a recommendation from the Danish health authorities to certain groups about staying home due to specific circumstances related to COVID-19 (quarantined employees). The employee must be unable to work from home. This is an exception to the current rules where the employer only receives reimbursement on the basis of the employee's illness.

  • An employer will, however, not be entitled to reimbursement for an employee who does not fulfil the standard employment requirements stipulated in the Danish Sickness Benefit Act. These are:

    o On the first day of absence, the employee must have been employed by the employer continuously for the previous 8 weeks before the absence and during this period performed work for at least 74 hours.

    o 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. Since this is a temporary initiative as a result of COVID-19, the proposed bill includes a cessation clause, which states that the temporary rules are proposed to cease on 1 January 2021. 

  • Please see (in Danish): https://www.ft.dk/samling/20191/lovforslag/L135/som_fremsat.htm
     

Initiative regarding more flexibility to the rules on reduced working hours

The Danish Government has on 12 March 2020 implemented changes that increase flexibility in the rules on reduced working hours, as follows:

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

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

  • Please see (in Danish): https://bm.dk/media/12851/faktaark-om-arbejdsfordeling.pdf

Three-party agreement on salary compensation from the Danish state

A new three-party agreement was agreed between the Danish Government and the Danish labour market's parties on 15 March 2020. On 24 March 2020, a final bill was passed on the salary compensation scheme. 

The agreement provides salary compensation to Danish employer's on certain conditions. The headlines are:

  • The agreement covers both monthly paid and hourly paid employees and employees who are covered by a collective bargaining agreement and employees who are not.

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

o 75% for monthly paid employees (with a salary cap of DKK 23,000 for (salaried) monthly employees); and

o 90% for hourly paid employees (with a salary cap of DKK 26,000 for hourly paid employees).

  • Applicable for 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 individual 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 five days without receiving salary. The number of days without pay is calculated pro rata, taking into account the proportion of the period from 9 March – 9 June 2020 that the employee has been sent home. The company cannot obtain compensation for any of these days.   

  • Pursuant to our current information, the salary compensation scheme cannot be combined with an (agreed) salary reduction, unless 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 enters into 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 9 June 2020.

Emergency tax legislation - New temporary payment deadlines

Currently the Danish companies have to pay withheld tax and labour market contribution in monthly installments. In order to give more liquidity to Danish companies, the Danish government has passed a bill under which companies are entitled to postpone payment of payroll tax and labour market contribution for 4 months, and postpone the payment deadline for VAT. 

Help package for Danish companies:
The Danish government and the parliament have agreed to cover some of the fixed costs, which companies no longer have the resources to cover (as a result of the COVID-19 crisis). 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: 
 
1. Companies across all industries are entitled to receive the compensation.
2. The compensation is targeted at companies with a large drop in their revenues (more than 40%). 
3. The compensation is targeted at fixed costs and will constitute between 25% and 80% of such costs. 
4. The compensation will cover up to a three month period, and will be payable as soon as possible. 
5. 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 has been between 40 and 60%; 
  • 50% if the drop in revenues has been between 60 and 80%;
  • 80% if the drop in revenues has been between 80 and 100%; 
  • 100% if the company has been prohibited from opening during the period.

Where can employers and employees access local and national advice?

Last reviewed 25 March 2020

[1] https://www.sst.dk/da/viden/smitsomme-sygdomme/smitsomme-sygdomme-a-aa/coronavirus/spoergsmaal-og-svar 

[2] https://www.sst.dk/corona and https://politi.dk/coronavirus-i-danmark

[3] https://um.dk/ 

[4] GDPR article 9 (2)(b), c.f. Section 7 (2) and 12 of the Danish Data Protection Act