The outbreak of Novel Coronavirus (COVID-19) has sparked fears of a worldwide pandemic. Based on the World Health Organization’s declaration that this is a public health emergency of international concern, the Public Health Agency of Sweden has (at the time of writing) raised the risk of the virus spreading within Sweden to moderate . Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
As at time of writing, there are no mandatory obligations for employers that are specifically in relation to COVID-19.
That said, employers should nonetheless ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations as well as a general duty of care towards their employees and should keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees.
As such, employers should carry out a risk assessment 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 soap and 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
- 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 Public Health Agency of Sweden , 1177 Vårdguiden , or the national COVID-19 hot line 113 13.
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, 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 at the nexus 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 the position is complex from a European data privacy perspective. There is a significant difference in how sensitive personal data can be processed in different countries, so the appropriate legal basis will change country to country.
Information on an employee's whereabouts and, thus potential exposure to COVID-19, however, does not necessarily constitute sensitive personal data. In Sweden, employers may process personal data relating to employees where such processing of personal data is necessary for, inter alia, (i) compliance with a legal obligation to which the employer is subject, (ii) protecting the vital interest of the data subject or another natural person, or (iii) a legitimate business interest. It is our assessment that the above provides a legal basis for the employer to act and process the personal data needed in order to take proactive measures to avoid the spread of COVID-19. Further, employees' loyalty obligations towards their employer and the interest of avoiding further infection and protecting the health and safety of colleagues and customers will prevail over the individual’s interest to protect their personal data. Hence, our assessment is that employees in Sweden are obliged to provide information to avoid further infection.
Ultimately, the position regarding European data privacy rules and how they impact information relating to COVID-19 is currently unclear. National governments 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 are employers' obligations where employees are absent or infected?
If an employee is infected with COVID-19, 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 where such has been implemented, should be informed and a work environment risk impact assessment and action plan should be performed. Where the employer is bound by collective agreements, trade union representatives should also be informed (trade unions having a general right to information on health and safety issues). Also, should COVID-19 materially impact on the employer's business operations necessitating the employer to, for example, change working hours or engage agency staff, engaging trade union representatives early on is advisable (thus facilitating potential co-determination consultations). When informing safety delegate(s), members of the safety committee and/or trade union representatives, employers must be very careful to balance the privacy of the individual(s) concerned with the public interest in avoiding the spread of the virus. However, since COVID-19 is classified by the Swedish Government as a disease threatening public safety, our assessment is that employees are allowed to provide the identity of COVID-19-infected employees to the safety delegate(s).
An infected employee will either be entitled to sick pay or state sickness benefit (if on sick leave and unable to perform work) or state disease carrier allowance (if unable to perform work due to being quarantined) as per applicable statutory rules on compensation .
In addition to the priority of health protection, the employer should develop a plan going forward as to whether and how operational processes can be maintained.
Potentially Infected Employees
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 in a risk area or had close contacts with an infected person, the employer should request the employee to undergo a medical examination. Until the results are available, the employee could be either instructed to work from home or, where working from home is not an option, released from work duties with full pay. However, as from if or when the potentially infected employee is quarantined under the Swedish Infectious Decease Control Act, the employee will instead be entitled to disease carrier allowance.
If there are too many absentees, employers can order the employees who are in the workplace to work temporary overtime subject to applicable laws and collective agreements. Employers can also consider engaging temporary staff and agency workers. Employers that are bound by a collective agreement should involve trade union representatives in this planning.
Refusals 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 summary/immediate termination. Thus, employees cannot refuse to attend work, nor can employees refuse to travel (unless the Ministry of Foreign Affairs has issued a travel restriction for the relevant destination).
What are employers' obligations where offices are partially or fully closed?
As a starting point, employees will remain entitled to full salary and benefits in accordance with their employment contract and applicable laws and collective agreements. Where possible, employees should be instructed to continue to perform their work duties, but from home.
Employees who are on sick leave are entitled to sick pay or state sickness benefit and employees who are quarantined are entitled to state disease carried allowance in accordance with statutory rules.
Where can employers and employees access local and national advice?
• The Public Health Agency of Sweden (Folkhälsomyndigheten): https://www.folkhalsomyndigheten.se/
• The Swedish Work Environment Authority (Arbetsmiljöverket): https://www.av.se/
• Emergency information from Swedish authorities: https://www.krisinformation.se/
• 177 Vårdguiden: https://www.1177.se/
• The Swedish Civil Contingencies Agency (Myndigheten för samhällsskydd och beredskap): https://www.msb.se/sv
• The respective Regions: As for Stochkolm: https://www.sll.se/
• The Swedish Social Insruance Agecny (Försäkringskassan): https://www.forsakringskassan.se/