Employment Law Perspectives on the Coronavirus Situation

The overall framework

In Denmark, the Epidemic Act gives public authorities wide access to regulate people's behavior and daily life. This can affect the relationship between employers and employees. It is difficult to navigate in because the coronavirus outbreak has transformed the employment situation into something yet never seen before in Denmark.

In general, employers - public as well as private - should stay abreast with the instructions and recommendations of the authorities.

The government and the National Board of Health encourage employers to request their employees, who have stayed in high-risk areas, to stay home from work for 14 days after the employee has returned to Denmark. At the same time, employers are encouraged to continue to pay salary to the employee during the quarantine.

In absence from the workplace caused by the coronavirus outbreak, it is Lund Elmer Sandager’s assessment that, in most cases, employers are obliged to pay salary to employees who are absent, on equal terms as in case of illness.

How should an employer act if an employee may be infected with the coronavirus?

As part of the managerial right, employers can decide whether an employee is allowed to be physically present at the workplace or whether the employee should be sent home.

When sending an employee home, the employer is, in most cases, obliged to pay salary, on equal terms as in case of illness.

Are employees entitled to refuse to attend work due to fear of coronavirus?

Employees cannot refuse to attend work due to the fear of being infected with coronavirus. This type of absence will not be considered lawful and may be considered as absence with no right to salary from the employer.

Only in certain cases, the employee can refuse to attend work without losing the right to salary. E.g. in cases where attendance at the workplace may lead to an increased risk for the employee of catching the virus.

This may be the case if there is an outbreak or increased risk of outbreak at the workplace, and the employee's health situation – e.g. due to a poor immune system – causes the employee's health or life to be endangered.

Can the employee refuse to go on business trips because of his/her fear of coronavirus?

As a main rule, the employee does not have the right to refuse to go on business trips. However, the employee may refuse to go on business trips if there is a risk that the employee's health or life is endangered.

If the business trip is planned to an area that the Ministry of Foreign Affairs classifies as a high-risk area due to the risk of infection, the employee is entitled to refuse to go on the trip.

Is an employee entitled to salary if he/she is prevented returning to Denmark due to coronavirus?

If an employee during a business trip abroad is prevented from travelling back to Denmark, the employer bears the risk and responsibility. As such, the employee is entitled to receive salary during the stay abroad and to be reimbursed for reasonable living expenses.

If the employee catches the infection during the business trip, or if there is a presumption of illness that prevents him/her from travelling back home, the employee will be absent due to sickness.

If the employee during a holiday catches the infection, is hospitalized or prevented from going home due to supposed infection, it is considered illness according to applicable rules. The same applies if the employee is quarantined at the destination and this was impossible to predict before commencing the trip.

In most cases, a publicly determined quarantine due to coronavirus is equivalent to illness during employment.

Do employers have the right to ask about the employee's recent travels and whether the employee has caught the coronavirus?

As an employer, you have the right to demand information on trips to exposed areas in which the Ministry of Foreign Affairs recommends not to enter. If so, the employer is entitled to make reasonable precautionary decisions on behalf on the employee.

As a main rule, an employer may not ask about the reason causing the employee's sickness. However, due to the potential fatal consequences, the employee is obliged to inform the employer if he/she is infected with coronavirus or if there is a high risk of infection.

How should an employer act if an employee travels to an exposed area that is either classified as an "orange" or a "red" area?

The employer does not have the opportunity to deny an employee to go on vacation in an exposed area. However, for the sake of the workplace, the employer does always have the right to recommend an employee not to go on vacation in exposed areas.

If an employee travels to an area classified by the authorities as an “orange” area and the classification during the journey changes to a red area resulting in a quarantine, it is Lund Elmer Sandager's assessment that the employee will not be entitled to salary on the same terms as regular  illness because an increased risk already existed at the commencement of the journey which the employee could have avoided by not traveling to the area.

If an employee, on the instructions of the authorities and the employer's recommendation, chooses to go on vacation in an exposed area classified as a "red" area and, for that reason, is unable to attend work after the trip, an employer may consider it self-induced illness which results in lapse of the right to salary.

Is a company obliged to pay salary to an employee if the employee's children are quarantined?

If the children are quarantined by the authorities, this quarantine will most likely include the parents in the household. This quarantine will be equivalent to sickness in accordance with the applicable terms specified in the employment agreement - i.e. either the Salaried Employees Act, a collective agreement and/or the Sickness Benefit Act.

If this is a voluntary quarantine, it is Lund Elmer Sandager's assessment that the employee is not entitled to absence, or this may be equalized with absence due to child's sickness which is subject to the rules on the child's first day of sickness, to the extent that the company has agreed such right with the employee.

Are companies obliged to pay compensation to an employee if the school/institution of the employee's child is closed?

If the quarantine is not compulsory or voluntary, but the school/institution is simply closed by the government - and there is no possibility of alternative "caring" for the child during regular working hours - the parents bear the risk, and the company may decide whether the parents are entitled to compensation while staying at home.

Employers must be eligible to claim that only one parent is home at a time unless both parents are quarantined.

Can employers dismiss employees because of decreasing operation activity due to the coronavirus outbreak?

In general, if companies experience a decreasing level of activity due to the coronavirus, it will be regarded justifiable to dismiss employees if this noticeable decrease in the company's turnover or the like can be documented.

How should employers deal with vacation notices, additional holidays, time off in lieu and other actions?

Coronavirus does not prevent you as an employer from unilaterally notifying remaining holiday to be taken before the end of the holiday year on 30 April 2020. According to the provisions of the Holiday Act, remaining holiday must be notified no later than one month prior to taking the holidays immediately after the one-month-notice. This also applies to holidays carried forward from previous holiday years.

In each individual employment contract, a shorter notice may be agreed, and it may be possible to agree with the individual employee to take the remaining holiday at an earlier date than if the remaining holiday had been unilaterally notified by the employer. There may also be rules in the collective agreement making shorter notices on holidays possible, or agreements with unions on holiday arrangements with shorter notice may be agreed.

In some instances, and out of considerations similar to force majeure, holiday may be imposed with no notice. There is no general guidance for this and therefore must be assessed on a case by case basis.

The rules for taking time off in lieu, doing flex time and additional holidays are not regulated by law and therefore follow the terms of either a collective agreement or the terms set out at the individual workplace and the individual employment agreement.

As an employer, you may consider using some of these tools to reduce the company's financial obligations and, within the framework of the individual employment relationship, ensure the absence from work of the employees without loss of income.

Do you have questions about how to act as an employer?

Coronavirus raises day-to-day challenges in workplaces, and it is not possible to provide a general set of guidelines for all situations in this newsletter. If you are unsure how to navigate as an employee, manager or owner of a company, we recommend that you look for competent legal advice.

If you need advice on the coronavirus’ impact on your workplace or other employment law matters, please contact one of our employment law experts; Partner, Attorney Michael Møller Nielsen, Attorney Julie Flindt Rasmussen, Assistant Attorney Nikolaj Sommers Gjettermann or Assistant Attorney Marta Valgreen Knudsen.