The Government and the social partners have made a tripartite agreement to reintroduce the statutory basis for employers to require that employees be tested for COVID-19.
From November 2020 to 1 November 2021, a special law was in effect that gave employers the right, subject to certain substantive and formal conditions, to require employees to disclose if they tested positive for COVID-19, as well as to require employees to be tested for COVID-19. Today, 12 November 2021, the Government and the social partners have reached a tripartite agreement to reintroduce this statutory basis.
In addition to the options and conditions of the previous special law, the tripartite agreement states that employers will have the option to, alternatively, require employees to present a valid Corona passport.
Further, the tripartite agreement states that as long as COVID-19 is classified as an illness posing a critical threat to society (until 10 December 2021, for now), it will be reasonable for employers to require employees to present a valid Corona passport. It is not clear whether the same automatically applies to the possibility of requiring employees to be tested and disclose if they test positive, or whether such a requirement would still have to be justified by health and safety or essential operational considerations.
Also as a new element, the tripartite agreement states that employers should be able to require employees to use self-tests at the workplace to the extent that the self-tests are CE approved and used in accordance with the instructions for the tests. It is not yet clear how this will affect employees’ right to require to be tested outside the workplace, unless the purpose of the testing would otherwise be defeated.
As this is a reintroduction of the previous special law, mandatory testing will have to be carried out during working hours to the extent possible and, if this is not possible, employers will have to compensate employees for the time and expenses of being tested.
The Government will ask Parliament to fast-track the bill reintroducing the special law. Norrbom Vinding will follow up when the Government has presented the bill.
The content of the above is not, and should not be a substitute for legal advice.