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Coronavirus - Employment update - Sweden

  • Sweden
  • Coronavirus - Workforce issues
  • Employment law

12-03-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by Swedish employers.

General Principles

Swedish employers should:

  • Monitor and follow advice and guidance from relevant authorities and organisations such as the World Health Organisation (“WHO”), the Swedish Public Health Agency, the Swedish Work Environment Authority and the Ministry for Foreign Affairs
  • Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
  • Inform their employees and, where relevant, recognised unions about their proposed measures
  • Have a continuous dialog with the employees’ safety representative in order to maintain a good work environment for all employees
  • Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • Review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • Review relevant insurance policies and guidance issued by their insurers
  • Update contact details for staff and management
  • Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19 or who report symptoms and may have CoVID-19

1. Employer’s duty of care – what does the law in Sweden say?

Employers in Sweden have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.

General provisions on “systematic work environment management” from the Swedish Work Environment Authority require employers to investigate, carry out and follow up on activities in such a way that ill-health and accidents at work are prevented and a satisfactory working environment is achieved. This duty is a continuing one, and assessments must be recorded.

Employers should therefore consider whether their existing arrangements for protecting staff take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the Swedish Public Health Agency and the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

It is advisable to remind employees of the general preventive measures recommended by the Swedish Public Health Agency, such as washing your hands often with soap and warm water and using alcohol-based hand rub. Some Swedish businesses have started to provide personal protection equipment to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure to CoVID-19, for example, those in contact with medical patients or visitors from high-risk regions.

An open dialogue in the workplace is important and employers should address any concerns expressed from other employees and inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc).

In response to an identified risk and for the purpose of ensuring the health and safety of all employees, employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area.

If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would ”impose danger to their life and health””.

Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self-quarantined; who have travelled to high risk destinations; who propose going on holiday to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specialising in employee relations; insurance; travel and events; communications and occupational health to work together on developing appropriate protocols.

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimise the risk of employees catching CoVID-19 in the workplace, for example asking staff members returning from high-risk regions whether they are experiencing any symptoms and delaying or cancelling non-essential business travel and meetings.

Whilst the government currently advises against travel to Hubei Province and all parts of Iran, and against all but essential travel to the rest of mainland China (except for Hong Kong and Macao) and parts of South Korea and Italy, it is not currently advising against travel to any other country/territory as a result of CoVID-19 risks. The Swedish Ministry for Foreign Affairs and Swedish Public Health Agency have up-to-date information on countries affected by the outbreak.

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

3. Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. If there is risk of exposure the employer can, in most cases, require staff to work from home during the risk period. If there are substantial risks of exposure, the employer may even be obliged to order staff to work from home in order to keep a safe work environment.

Furthermore, employers have a general right to assign additional duties or change the employee’s job description, but this right is not unlimited. The new duties should be carried out on behalf of the employer and they should lie within the framework of the employer’s natural area of activity. It is also required that the new duties, responsibilities and job title do not fundamentally change the nature of the employment, that is to say that the employee’s role or position within the company doesn’t change completely. If these requirements are met, the employee has an obligation to work in accordance with the changed job description.

In any event, it is important that the employer can justify the need for flexible working and change of work duties and behave reasonably and proportionately when implementing different working arrangements. Such new working arrangements should not last longer than necessary.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. In the first instance, employees should be allowed to temporarily work from home, if that is possible.

In other cases, such as site-based work, it should be assessed whether the employee in question is unwilling to work due to a general fear of being infected or if the employee has a genuine reason to fear that the employee may be infected by attending the workplace, e.g. if a colleague has recently returned from an affected area. Where it is reasonable to believe that working or carrying out assignments would impose a risk to the employee’s life or health, the employee is entitled to paid leave. In other cases, the employee can choose to take accrued vacation days.

If an employee refuses to attend work despite there not being any exposure or risks, and does not opt to use accrued vacation days, the employer does not need to pay any salary. Refusal to work may also, ultimately, be objective grounds for termination of employment.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees’ concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted. Employers should accept a reasonable amount of unpaid time off work to deal with domestic emergencies. Furthermore, for care of dependants and/or sick children, employees may be allowed to receive different benefits from the Swedish Social Insurance Agency. If such benefits are received, employees are entitled to leave. However, no salary needs to be paid from the employer during that time (please refer to the next question for more information).

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 and experience symptoms will normally be entitled to sick pay in the usual way.

Staff members unable to come to work due to caring responsibilities (for example where schools are closed or where they are caring for sick children, dependants or closely related persons) will likely be eligible to receive temporary parental benefit or benefit for care of a closely related person from the Social Insurance Agency. Employers have a statutory obligation to allow leave when employees are receiving such benefits.

Employees who do not have job duties that can be performed from home, would likely be eligible to receive disease carrier allowance from the Swedish Social Insurance Agency. Disease carrier allowance is compensation employees can receive if they must refrain from work because they have (or are suspected of having) an infectious disease or must visit the doctor to investigate whether they have an infectious disease or are infected with a disease considered a public health hazard (such as the CoVID-19). Employers do not have to pay salary to employees that are receiving disease carrier allowance. The allowance is 80 percent of the employee's salary, but capped to SEK 804 per day. If an employee does not meet the requirements for receiving disease carrier allowance, the employer may still require the employee to stay at home. The employer would then, however, need to pay the employee regular salary. Please note that employers cannot force employees to take vacation days for this purpose.

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, asking staff members returning to work from high-risk areas whether they are experiencing any symptoms. To avoid risking non-compliance with the GDPR, we recommend that employees are asked to orally inform their nearest manager (or any other person the employer deems appropriate) if they are experiencing symptoms, and that no written data (whether digitally or in physical form) on the answers is processed by the employer. After the nearest manager has been informed, a discussion can take place on appropriate measures moving forward.

There are no specific laws/regulations prohibiting the employer to mandate medical checks. Employers can request employees to visit a doctor and take a test if it is reasonable and necessary for the safeguarding of other employees. By way of example, if an employee has returned from an area experiencing an epidemic of CoVID-19 and displays symptoms of being unwell, it would be reasonable to request the employee to visit a doctor and take a test, as part of the employer’s responsibility to keep a safe work environment for other employees. If an employee refuses to visit a doctor despite there being a reasonable suspicion of infection, the employer should consider the safety of the workplace first and send the employee home. Depending on the circumstances , legal advice should be taken to evaluate whether salary must be paid in the individual case.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shut down period?

No, employers cannot require employees to take annual leave for that purpose. If an employer temporarily shuts down business or stops production, the employees must be laid off and are still entitled to receive their regular salary and other employment benefits as if they had been allowed to continue their duties. There is no explicit time limit for this in any statutory provisions, but in general the alternative to lay off employees must not be used if a termination of employment due to redundancy is more appropriate, for example if the particular situation is expected to be long-lasting. This must be assessed on a case-by-case basis. Nevertheless, if the employer decides to lay off employees, they are entitled to their salary and employment benefits during that time

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
  • Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • Consider alternatives to travel such as using videoconferencing or webinars
  • Identify and track employees who are abroad and consider appropriate measures to support them
  • Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
  • Consider any measures necessary to sustain widespread home working
  • Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
  • Consider how temporary shutdowns of premises might be managed
  • Review their insurance coverage
  • Consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently.

9. Where can guidance from the Swedish government and international bodies be found and monitored?

The Swedish Public Health Agency’s website provides the latest official information on CoVID-19 in Sweden -

https://www.folkhalsomyndigheten.se/smittskydd-beredskap/utbrott/aktuella-utbrott/covid-19/aktuellt-epidemiologiskt-lage/

The World Health Organization’s information on the CoVID-19 may be found here:

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Furthermore, all individuals who suspect that they are infected, especially individuals who have recently returned from high risk regions, have been asked by the authorities to telephone the Healthcare Guide on 1177, which is Sweden’s national hub for advice and information related to healthcare. The Healthcare Guide 117 provides healthcare advice via telephone and will advise individuals of whether or not they should visit a healthcare facility, depending on the circumstances at hand.

The public, including employers, can also telephone 113 13 if they have general questions about CoVID-19. Individuals who are experiencing symptoms or suspect that they are infected must, however, telephone 1177 instead.

10. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

11. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

There is no mandatory obligation to notify the authorities if an employee has been infected or is suspected of being infected. The only obligations are on laboratories and/or doctors treating an infected patient or performing an autopsy.

For more information contact

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