Requirement to present valid corona passport
Requirement to disclose covid-19 test results
Compensation for tests during leisure time
Information requirement
Processing of personal data
Effective date and sunset provision
Requirement to present valid corona passport
The government has introduced a new act that implements the tripartite agreement that was made on 12 November 2021(1) and gives employers the right to require employees to present a valid "corona passport". According to the preparatory notes to the act, as long as corona is classified as an illness that poses a critical threat to society, employers will be justified to implement such a requirement.
Requirement to disclose covid-19 test results
Employers will continue to be able to require employees to be tested for covid-19 and disclose the test results as quickly as possible, a right that was already provided for under the previous special act. Employees may also be required to disclose positive results if a test has been taken during their leisure time.
A test requirement must still be reasonably justified by considerations of preventing the spread of covid-19 or by essential operational reasons of the company. Consequently, a test requirement will not be justifiable only because covid-19 is classified as an illness that poses a critical threat to society. According to the preparatory notes, it will be sufficient to require a valid corona passport in most situations. Consequently, employers will only be justified in mandating that employees be tested in special circumstances (eg, in case of an outbreak at the workplace).
Further, the act gives employers a new right to require employees to use Conformité Européene-approved (CE-approved) self-tests in the workplace.
It was stated in the preparatory notes to the bill that employees may refuse to take such test and, instead, choose to be tested outside the workplace, unless this would wholly or partly defeat the purpose of the test. However, during the readings of the bill in Parliament, the minister for employment answered a number of questions concerning this particular issue. The minister stated, among other things, that employees' right to refuse testing at the workplace and instead be tested outside the workplace does not apply in the case of self-testing. Employees can therefore only refuse to be tested at work if the test is carried out by the employer or co-workers. In addition, it was made clear, among other things, that employers can impose a continuous requirement for employees to present a valid corona passport or to be tested for covid-19 for an unspecified period. However, the continuous testing requirement must remain justifiable during such a period; therefore, employers should carefully assess their justification the test requirement on an ongoing basis.
Compensation for tests during leisure time
Mandated testing shall still generally be carried out during working hours. If this is not possible, employees will be entitled to receive financial compensation for (reasonable) transport costs and for the time spent being tested. This also applies to employees who are required to present a valid corona passport and, in this context, need to be tested (ie, employees who are unvaccinated or have previously been infected with covid-19).
It is clearly stated in the preparatory notes that employers may enter into agreements with employees as regards being tested in their leisure time, instead of during working hours, and on how the financial compensation for tests during leisure time will be calculated. It may also be agreed that employees will receive compensation in the form of time off, rather than financial compensation.
However, the preparatory notes are not clear on how this issue must be handled in relation to rules on, among other things, working hours and working time-related allowances, which are set out in collective agreements.
According to the law and collective agreements, employers must inform and, in some cases, consult with employee representatives, cooperation committees/works councils as regards any contemplated measures under the new act.
Employees must also be informed in writing if they are required to show a valid covid-19 passport or to be tested, and be given information on the reason for this measure. If an employer requires employees to present a valid covid-19 passport, it is sufficient for the employer to inform the employees that the reason for the requirement is the fact that covid-19 is classified as an illness that poses a critical threat to society.
The employer may impose employment-related penalties on employees if they do not meet any statutory requirements, but only if the employer has provided information on the nature of such penalties in cases of non-compliance.
According to the preparatory notes, there is nothing that prevents employers from requiring that employees present a valid corona passport over a longer period, and not just on one or several occasions. In such case, the information to the employees and their representatives must include the relevant period.
According to the preparatory notes, if employers only visually check employees' corona passports without registering any information, this will not constitute the processing of personal data that is covered in data protection legislation.
However, it may still be necessary to process personal data in situations where employment-related sanctions are initiated because an employee fails to meet a requirement to present a valid corona passport. Similarly, it may be necessary to process personal data in connection with a requirement to be tested and to disclose the result. The new act creates basis for such processing.
Effective date and sunset provision
The new act entered into effect on 26 November 2021 and will remain in force until 11 December 2021, at which date it is due to be automatically repealed. On this date, covid-19 will (until further notice) cease to be classified as an illness posing a critical threat to society. There will, however, be statutory basis for the Ministry of Employment to defer repeal as long as covid-19 is classified as an illness posing a critical threat to society is extended.
For further information on this topic please contact Christian K Clasen at Norrbom Vinding by telephone (+43 35 25 39 40) or email ([email protected]). The Norrbom Vinding website can be accessed at norrbomvinding.com.
Endnotes
(1) Further information is available here.