Coronavirus – introduction of bill on employers’ right to require employees to present a corona passport or to be tested

The Government has introduced a bill entitling employers to require that employees present a valid corona passport or be tested for COVID-19.

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The bill implements the tripartite agreement made on 12 November 2021. Our article on this agreement can be read here

Requirement to present a valid corona passport
The bill gives employers the right to require employees to present a valid corona passport. According to the preparatory notes to the new act, as long as COVID-19 is classified as an illness posing a critical threat to society, employers will be justified in requiring employees to present a corona passport.

Requirement to disclose COVID-19 test results
Employers’ possibility of requiring employees to be tested for COVID-19 as quickly as possible and to disclose the test results, or requiring employees to disclose if they test positive in their leisure time, is essentially the same as under the previous special act.

A test requirement must still be reasonably justified by considerations of preventing the spread of COVID-19 or by essential operational reasons. Consequently, a test requirement will not be justifiable simply because COVID-19 is classified as an illness posing 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, e.g. in case of a COVID-19 outbreak at the workplace.

As something new, the bill gives employers the right to require employees to use CE approved self-tests at the workplace. However, it is also stated in the preparatory notes that employees may refuse to use self-tests at the workplace and instead be tested outside the workplace, unless this would wholly or partly defeat the purpose of the test.

Compensation for tests during leisure time
As before, the starting point is that mandated testing must be carried out during working hours. If this is not possible, the 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, i.e. 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 on them 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 in lieu or the like instead of a financial compensation.

It should be noted, however, that the preparatory notes are not clear on how this issue must be handled in relation to rules on working hours, working time-related allowances, etc. laid down in collective agreements.

Information requirement
Employers must in accordance with the law, collective agreements, etc. inform – and perhaps also consult with – employee representatives, cooperation committees/works councils, etc. about any contemplated measures taken under the new act.

Employees must also be informed in writing if they are required to show a valid corona passport or to be tested, including information on the reason for this measure. If an employer requires employees to present a valid corona passport, it will be 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 posing a critical threat to society.

The employer may impose employment-related sanctions on the employees if they do not meet requirements with a statutory basis, but only if the employer has provided information on what employment-related sanctions may be applied in case of non-compliance.

According to the preparatory notes, there is nothing preventing employers from requiring that employees present a valid corona passport over a longer period, and not just on one or a few occasions. In such case, the information to the employees and their representatives must include the relevant period.

Processing of personal data
According to the preparatory notes, if employers just visually check employees’ corona passport without registering any information it will not constitute processing of personal data covered by the 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. Likewise, it may be necessary to process personal data in connection with a requirement to be tested and to disclose the result. According to the preparatory notes, the new act will create basis for such processing.

Effective date and sunset provision
The bill was given its first reading on 23 November 2021, and the second and third reading will take place on 25 November 2021. If the new act is passed, it is expected to enter into force on 26 November 2021 at the latest.

As the bill is based on a tripartite agreement, it is considered unlikely that substantive amendments are adopted or that the bill is rejected. Thus, even though the bill has not been passed yet, employers may begin consulting employee representatives, cooperation committees/works councils, etc. and preparing the necessary material, so that they are ready to require employees to present a valid corona passport as soon as the new act enters into force. Norrbom Vinding can assist with the preparation of information material, agreements, etc.

As a starting point, the new act will be automatically repealed on 11 December 2021. 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 until 31 December 2021, provided that the classification as an illness posing a critical threat to society is extended.

Norrbom Vinding follows the bill closely and will report on any developments.

The content of the above is not, and should not be a substitute for legal advice.

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