Employment law and the Coronavirus

We are currently receiving many questions from employers about what obligations employers and employees have regarding the risk of contagion of the Coronavirus Covid-19 as well as what measures that can be taken in order to avoid spreading of the virus in the workplace. Cirio explains the legal situation.*

Work environment safety actions

The Coronavirus is classified by the Swedish Public Health Agency (Folkhälsomyndigheten) as a disease that is dangerous to public health and to society under the terms of the Communicable Diseases Act (Smittskyddslagen). This means that the employer, from a work environment perspective, is obliged to make a risk assessment by investigating the risk of infection and transmission and the risk it poses to employees. The risk assessment should also include what consequences the employees’ worries can have on the organizational and social work environment. In case there is a risk of outbreak at the workplace, the employer must take measures to mitigate the risks.

As part of the employer’s work environment safety routines, it is appropriate for the employer to adopt a policy or guideline with routines on how the risk of infection should be handled as well as what applies in a situation with suspected or confirmed infection. For example, such policies or guidelines may include the following:

• that employees who lately have visited any areas of widespread contagion, but who are not showing any symptoms, are not allowed to come to work within two weeks of returning home, which in turn corresponds to the longest reported incubation period of the virus;
• that employees with respiratory symptoms, coughs, breathing difficulties or fever, whether they have visited areas with ongoing spread of virus or not, must stay home until the symptoms have disappeared by a good margin;
• that employees showing signs of symptoms must contact the public healthcare system, human resources and work environment safety representatives;
• that employees are to maintain a good hand hygiene; and
• that employees may not make business trips to identified high risk areas.

An employer may, out of a work environment safety perspective, also be entitled to request that an employee provides information on whether they or anyone in their presence have visited, or have come in contact with persons who have visited areas highly affected by the virus. Likewise, an employee who suspects they may be infected by the virus has a statutory obligation to inform people they interact with about the risk of infection.

Working from home

An employer can order an employee to work from home or not to show up at the workplace. However, the employee is entitled to receive full remuneration while ordered to work from home or not to show up at the workplace. The employer is not obliged to negotiate with the union before making such a decision since the change in employment relationship only is temporary. Local sections of the union, if any, should however be kept informed. Concerns by an employee regarding travelling to work by public transportation, attending the workplace or travelling on official duties does not automatically entitle the employee to work from home, unless he or she first obtains the employer’s consent.

If the employee chooses not to show up at work and instead decides to work from home without having been given the right or the consent to do so, such act could be considered as refusal of work or as refusal of order, which may constitute a breach of the employment agreement.

Outbreak at the workplace

However, if there is an outbreak at the workplace and this causes an immediate and serious danger to life and health, the employer is obliged to take necessary protective measures immediately. Such protective measures may, for example, be to order an infected employee to leave the workplace or to shut down all or parts of the workplace and to implement decontamination measures.

If such safeguard measures are not taken, the employee may refrain from appearing in the workplace to perform work, with retained salary, provided that the employee has fair reasons for doing so. Under such circumstances, a work environment safety representative may also decide that the work should be suspended pending the decision of the Swedish Work Environment Authority.

In this context, it should be pointed out that an employee who, despite being aware about the risk of spreading the infection, still goes to the workplace can be committing a criminal act, which in turn can have consequences under both employment law and criminal law.

Sick leave and infectious carrier allowance

An employer does not have the authority to order the employee to take sick leave, but there is nothing that prevents the employer from encouraging the employee to take sick leave on their own. If the employee is ill and unable to work, the employee is entitled to sick pay. If, on the other hand, an employee can work, but is prevented from working as a result of being infectious, the employee may be eligible for receiving infectious carrier allowance (Smittbärarpenning) from the Swedish Social Insurance Agency (Försäkringskassan). Such compensation requires that it has been certified by a physician that the employee is infected or can be presumed to be infected with the Coronavirus. The employee is then entitled to 80 per cent of the salary without any qualifying period.

* This newsletter must not be regarded as labour law advice that can be taken for good for the employer’s actions in an individual case. The information can neither be understood as complete. It should be noted that both employment contracts and collective bargaining agreements may contain provisions which alters the legal situation.

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