Extent of employer's duty
Employers must provide safe working environments. For employees whose ability to work has been compromised due to an accident, illness or fatigue, sections 4 to 6 of the Working Environment Act provide that their employers must implement measures that enable them to retain or be given suitable work.
The duty to adapt applies to all employees with reduced working capacity, regardless of whether the underlying cause is related to their job.
Discussions and attempts to adapt work duties are an important part of the employer's follow-up with employees who are on sick leave. Unless it is deemed unnecessary, the employer must work with the employee on a return-to-work plan. This plan must be completed no later than four weeks after the start of the employee's absence, and it must contain the following:
- an assessment of the employee's work tasks and ability to work;
- an outline of measures that the employer has approved;
- an outline of the measures that are provided by the Norwegian Labour and Welfare Administration (NAV);
- a plan for a subsequent follow-up.
If an employee is completely absent from work, their employer must call them to a meeting no later than seven weeks after the start of their absence. If the sick leave lasts for six months or more, the NAV will arrange a meeting with the employee. The intention of these meetings is to find solutions and measures to adapt the employee's role such that they will be able to return to work.
It is important that employers and employees regularly discuss the return-to-work plan in addition to the formal follow-up meetings.
Employers are not allowed to ask sick employees for their prognosis. It can, therefore, be useful for the doctor who has prescribed the sick leave to participate in the employer-employee meetings, as they can help assess or propose reasonable adaptation measures.
The employer's duty to adapt is to ensure that an employee can continue their position after a period of sickness.
The Supreme Court confirmed in the recent Widerøe judgment that the duty to adapt extends far, but the extent of this remains unclear (for further details please see "Dismissed on sick leave: Supreme Court rules on employer's duty to facilitate").
Often, simple adaptation measures will be enough to help the employee return to work. Reducing or adjusting their working hours and altering equipment is often highly effective. For an employee who struggles with a sore back, for example, the use of a height-adjustable desk or less heavy lifting may be all that is needed.
In more extreme situations, employers will need to take further steps, such as temporary or permanent changes to the employee's duties. This may include transferring the employee to another department or allowing them to work from home.
There are many possibilities, and it is important to keep an open dialogue with the employee. Employers must remember to look at the company as a whole, as actions taken under the duty to adapt will impact other people in the business.
It is also useful to encourage the employee to make suggestions when devising the adaptation measures. The employee may find it beneficial to not work with short deadlines or in teams, so that their sudden absence will not affect other workers and important operations.
The duty to adapt also has some limitations. For example, employees are not allowed to take over positions or tasks that are occupied by other persons at the company. Employers must also not create a completely new position for the employee to return to work. However, the Widerøe judgment indicated that there is uncertainty regarding the obligation to create new positions.
This judgment concerned whether the employer in question should have to permanently divide one full-time position into two part-time positions in order to allow the employee to keep their job. The Court ruled against dividing the role because the employer, among other things, had documentary proof that this would cause significant challenges to the business.
However, employers may have to make such a division as part of their duty to adapt. An example could be if the division is practically possible, and the employee's type of position already exists as a part-time position in the business.
Employers must make significant efforts to arrange work for employees after returning from sick leave. It is important to keep documents regarding all proposals and attempts to devise adaptation measures that have been discussed and tried. Further, where proposed measures are deemed impractical, employers must record their justification for not applying them.
For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.