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 Finnish Institute for Health and Welfare actively monitors the situation and reports to other authorities, such as the Ministry of Social Affairs and Health. Finland authorities constantly evaluate the risk level of the virus spreading within Finland .
Finland declared a state of emergency in response to the COVID-19 situation on 16 March 2020, and measures outlined by the Government were implemented in accordance with the Emergency Powers Act, the Communicable Diseases Act and other relevant legislation. Such measures included the closure of schools, educational institutions and universities, restrictions on public meetings and gatherings, restrictions on mobility and visits to health care units, and increased social welfare and health care capacity that naturally had at least an indirect impact on employers. On 15 June 2020, the Finnish Government determined that the COVID-19 pandemic could be managed using the regular powers of the authorities, and therefore issued decrees repealing the use of powers under the Emergency Powers Act and announced the state of emergency revoked as of 16 June 2020. However, other legislative powers will continue to be applied, in particular those laid down in the Communicable Diseases Act, but also the Border Guard Act and other legislation under normal conditions. Additionally, the situation is being managed through regulations, guidelines and recommendations issued by the authorities.
Finnish society has now been gradually re-opened. Schools were opened as of 14 May 2020, restaurants and cafés were opened from the beginning of June 2020, and it is expected that remaining restrictions in these areas will be fully lifted as of 13 July 2020. Restrictions on gatherings and public meetings will also be removed gradually, and, if the situation remains stable, the restrictions limiting gatherings are expected to be fully removed in October 2020.
In addition, the Finnish Government assessed the current situation on 23 June 2020 and announced that the extensive recommendation on remote work will expire on 1 August 2020, due to the improved COVID-19 situation. In accordance with the statement of the Finnish Government, the summer holiday season in July will allow a flexible transition towards normal working conditions. However, the Finnish Government will constantly monitor the situation.
As of 13 July 2020, Finland is also expected to lift the internal border control and restrictions on travel between Finland and countries where the COVID-19 situation is similar and their internal border controls have already been lifted. These countries are currently Denmark, Iceland, Norway and the Baltic countries. The Finnish Government will continue to assess the overall situation in the Schengen area and the EU Member States and may update the list of relevant countries in its plenary session on 10 July 2020 (dependent on the development of the COVID-19 situation at that time). However, anyone travelling from Finland to foreign countries is reminded to check the restrictions of the destination country as these countries may have their own restrictions in force.
Understandably, this may be creating questions 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?
Employment legislation was also temporarily amended to allow employers to adapt their activities quickly in the COVID-19 situation. The changes entered into force on 1 April and remain in place until 31 December 2020. The temporary changes are summarised as follows:
- Immediate termination during a probationary period is permitted due to financial and production-related reasons.
- The notice period for temporary lay-offs is shortened from 14 days to five days.
- Employers are allowed to temporarily lay off fixed-term employees in accordance with the same criteria as employees whose employment is indefinite.
- The minimum cooperation consultation period for temporary lay-offs is shortened to five days, regardless of the number of employees concerned and the length of the planned temporary layoffs.
- The re-employment period for redundant employees who have received a notice of termination prior to 31 December 2020 is extended to nine months after the expiry of employment.
These temporary legislative changes do not affect the applicability of any collective bargaining agreement and the provisions of such agreements should always be carefully considered.
Further, legislative changes regarding the temporary reduction of private sector employers' pension contributions (by 2.6 percentage points) entered into force on 1 May 2020. This change will be valid until 31 December 2020, and the level of employers' pension contributions in 2021 to 2025 shall increase accordingly. In addition, temporary legislative changes to widen employees' unemployment security have been implemented, which affect the maximum period of unemployment allowance and the waiting period, among other things. These temporary changes to Finnish unemployment security legislation due to COVID-19 have also been extended, and will now be in force until 31 December 2020.
The Finnish Government has also introduced a number of financial support measures for the Finnish economy. Such measures include direct grants, capital investments and loans, and SMEs in particular now have the opportunity to benefit from financial support offered and arrange their working capital financing to face upcoming pressure. For more information on financial assistance, please see our article here.
In addition, the Act on fixed-term support for business costs was approved by the President of the Republic on 26 June 2020, and will be in force from 1 July until 31 December 2020. Aid will be available for the support period of 1 April to 31 May 2020, and applications can be made to the State Treasury from 7 July until 31 August 2020. In order to be eligible for the support, there must have been a significant decrease in both the company’s and the sector’s turnover (and other general conditions must also be met). 368 sectors are covered by the aid rules, and the company must operate in a branch determined by the act and statute. If the criteria are met, support can be granted on the basis of the company's fixed costs and payroll costs incurred during the support period, up to a maximum of EUR 500,000. However, if the company has already received other coronavirus-related financial support, previous forms of direct support will be deducted from this aid.
At time of writing (29 June 2020), there are no mandatory obligations for employers that are specifically in relation to COVID-19.
However, employers should ensure that they are taking necessary steps to protect their employees. All employers have health and safety obligations towards their employees, in addition to an extensive duty of care. Employers should keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees. Following the COVID-19 pandemic, employers should pay particular attention to the relevant measures in order to fulfil work safety obligations and to protect the personnel. In practice, the required measures will be dependent on various factors such as the industry, sector and/or field of business where the employer is operating, and as such case-by-case assessments should occur.
Similarly, situational assessments and evaluations (in addition to any possible adjustments) should also be made when returning to the workplace during, and following, the COVID-19 pandemic.
As such, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like COVID-19 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; and
• try to avoid close contact with people who are unwell.
We further recommend notifying employees where they can access more information if they are concerned, such as from the Finnish Institute for Health and Welfare and the national COVID-19 telephone service.
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 and/or 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.
Any such data must also 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.
Finnish employment law is very strict when it comes to the possibility of employers processing employees' personal data, especially health data. The Act on Privacy in Working Life also allows processing of employees' personal data only if it directly necessary for the employment relationship (the "necessity requirement"). Article 9 (2)(b) of the GDPR enables employers to process health data in order to carry out the obligations and exercise the specific rights of the controller or of the data subject in the field of national employment law. Under the Finnish Occupational Safety and Health Act, employers are required to take care of the safety and health of their employees by taking the necessary measures. Complying with occupational safety obligations can thus be considered a valid legal basis for processing health data under the GDPR and directly 'necessary' under the Act on Privacy in Working Life. However, there are several additional aspects to consider.
• In Finland employees cannot be obliged to share their health information with their employer for preventive reasons, unless prescribed in sector specific legislation. As such, it is advisable for employers to take COVID-19 precautions on voluntary basis as far as possible. For instance, it is a good practice to publish guidelines on measures to take when a COVID-19 infection is suspected.
• If employees experience symptoms of COVID-19, they can also be advised to consult an occupational health care professional. The occupational health care professionals shall evaluate whether absence from work is required.
• Publicly revealing information on an employee's health in a workplace is prohibited. However, based on the information received from occupational health services the employer may assess if workplace safety requires issuing wider instructions, for example, to work from home or to cancel meetings and seminars.
• Unlike health information, information on an employee's whereabouts and, thus potential exposure to COVID-19 does not necessarily constitute sensitive personal data. Processing information about employees' travels and contacts with persons who have travelled in certain areas can be justified in light of the necessity requirement. In addition to this, general information on whether an employee has been quarantined is not health data unless it includes specific health-related reasons for the quarantine
• In any operations involving employee personal data, it is paramount to only collect and process data which is necessary for ensuring a safe working environment. For instance, it is seldom necessary to process detailed information on employees' relatives and friends or even travel locations. The same outcome can often be reached by processing more generic data and "yes or no" answers (including, for example, "Have you travelled in epidemic areas as classified by the Finnish authorities (list)?", and, "Have you been in contact with anyone recently travelled in these areas").
• When it comes to processing employee health data or other personal data connected to COVID-19 precautions, it is also important to:
o only store the data for a limited period of time
o only allow access to a limited number of people
o only allow access to health data to people who are authorized through their job description; and
o protect the data with adequate security measures
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, (which 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.
• Employers 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.
Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. The European Data Protection Board has adopted a statement on the processing of personal data in the context of the COVID-19 outbreak on 19 March 2020 and the Finnish Data Protection Ombudsman has issued general information on the situation (see here). A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. 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?
If an employee is infected with COVID-19, it is recommended that the responsible health authorities should be notified in order to seek guidance on how to best protect the health of the workforce.
The safety delegate(s), or safety committee (if applicable) should be informed and a work environment risk impact assessment and action plan should be performed. If an infection is discovered at the work place the employer should inform the employees generally about the possible infection and give necessary instructions taking into account the restrictions of the data protection regulation referred to above.
Employees on sick leave are entitled to sick pay or sickness allowance, and employees ordered to remain home from work, ordered into isolation or quarantined to prevent COVID-19 by the decision of a doctor defined in the Communicable Diseases Act are entitled to sickness allowance on account of an infectious disease in accordance with statutory rules (Section 82 of the Communicable Diseases Act 1227/2016 and Chapter 8, Section 1 of the Health Insurance Act 1224/2004) (link). If an employer has paid a salary to the employee for the period of absence, the allowance may be paid to the employer.
In addition to the priority of health protection, employers should develop a plan going forward as to whether and how operational processes can be maintained.
Potentially Infected Employees
When an employee has not become ill, but the authority has ordered him or her into isolation or quarantine, in principle the employer is not obliged to pay salary. However, in such a case it is recommended to verify this under any applicable collective bargaining agreement. Naturally, the employer can decide to pay salary, in which case equal treatment of the employees should be taken into account. In such circumstances, the employer may be entitled to receive the abovementioned allowance.
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 travelling or had close contacts with an infected person, the employers are recommended to request the employee to undergo a medical examination.
Employers can consider several measures if the business is threatened by COVID-19 and employees' absences. The available means should always be assessed on a case-by-case basis considering, for example, the terms of employment (including collective bargaining agreement and co-operation obligations). Some examples of available measures are the requirement of emergency work, the use of agency hired labour, and the implementation of remote working, (which is highly recommended by the Government). Using careful case-by-case consideration, depending for example on the terms of employment, the employer can assess the possibility of appointing the employee alternative work in accordance with his or her employment contract.
In addition to the priority of health protection, employers are recommended to develop a plan going forward as to whether and how operational processes can be maintained in case of bulk absences.
Refusal 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 termination. Thus, employees cannot refuse to attend work. In order to fulfill occupational safety responsibilities, employers should, for example, continuously monitor the working community and assess the risks at the work place in order to prevent dangers and risks that are harmful to employees' health. Employers must also ensure that the risk of infection is restricted. Due to the above-mentioned health and safety obligations, employers need to observe authority instructions and travel restrictions and then update their workplace instructions, if needed.
We also note that whilst travel restrictions are being lifted during summer 2020, the Finnish Ministry of Foreign Affairs is currently advising individuals continue to avoid non-essential travel. We recommend that an employer’s insurance coverage is checked regarding additional costs caused by the virus.
What are employers' obligations where offices are partially or fully closed?
In the case of workplace closure, employers should assess whether the temporary amendments to the employment legislation (in force until 31 December 2020) described above could be utilized.
If the temporary changes are not applicable, employees will generally remain entitled to full salary and benefits in accordance with their employment contract and applicable laws and collective bargaining agreements. Where possible, employees should be instructed to continue to perform their work duties remotely. Therefore, it is recommended that employers prepare properly with e.g. with proper remote working possibilities and policies where possible.
However, if an employee is prevented from working due to a fire, an exceptional natural event or another similar event affecting the workplace beyond the control of the employee or the employer assessed on a case-by-case basis, the employee is entitled to pay for the period of impediment, (up to a maximum of 14 days).
Where can employers and employees access local and national advice?
General information and recommendations are available here:
- The Finnish Institute for Health and Welfare
- Ministry of Foreign Affairs
- Medical Helpline 116 117
- The Social Insurance Institution of Finland
Last reviewed 29 June 2020