Covid-19 has an impact on sickness benefits

Covid-19 Has Meant Changes in Many Legal Areas – Including Labour Law

Covid-19 has an impact on the reimbursement of sickness benefits. The changes have manifested themselves in relation to the employer’s right to sickness benefits, among other things. This article provides an overview of the legislation in the area, the temporary changes that have been made in connection with Covid-19, and the impact of the changes on the interaction with personal data law and you as an employer.

Legislation in This Area

Section 6 of the Sickness Benefits Act states that the municipality pays sickness benefits to the employee in the event of his/her absence due to illness. However, it is the employer who must pay sickness benefits to the employee for the first 30 days of the sickness absence, cf. section 6(1), 2nd sentence of the Act. Sickness benefits paid within the first 30 days will thus not be refunded by the municipality. The right to sickness benefits is also conditional on the employee meeting the employment requirements in sections 30 and 32, respectively.

Temporary Amendment of Legislation in This Area

In connection with Covid-19, there has been a temporary change in the legislation. Employers – whose employees call in sick due to Covid-19 – can be reimbursed for the paid sickness benefits already from the employee’s first day of illness. This means that the employer’s period, which follows from section 6(1), 2nd sentence of the Sickness Benefits Act, does not apply if the employee is unable to work due to Covid-19.

The Interaction With Personal Data Law

The temporary change in the sickness benefit rules means that an employer needs to know whether the employee is on sick leave with Covid-19 before the employer can be reimbursed sickness benefits from the employee’s first day of sickness.

According to the Health Information Act, an employer may only request health information from the employee if the information will have a significant impact on the employee’s ability to work in the position in question. If the information is necessary for the employer to be reimbursed for sickness benefits, it will be possible to ask whether the employee is infected with Covid-19 or has symptoms.

In connection with Covid-19, there has also been a temporary change in the law that gives employers the right to order their employees to be tested for Covid-19. In that case, it must be objectively justified in the interests of limiting the spread of infection with Covid-19. If this is the case, the employee also has a duty to inform the employer of the test result. According to the General Data Protection Regulation, health data is sensitive personal data, which is why the processing of such data requires a legal basis in the General Data Protection Regulation. This legal basis is found in Article 9(2)(f), as the treatment is necessary to determine the employer’s claim for reimbursement of sickness benefits.

In addition to the fact that there must be a legal basis for processing the personal data, it is also important that the employer’s processing is limited to what is necessary to comply with the principles of Article 5 of the General Data Protection Regulation.

What Does It Mean for You as an Employer That Covid-19 Has Changed the Rules for Sickness Benefits?

The change means that you as an employer can be reimbursed for sickness benefits already from the employee’s first day of illness if the employee is unable to work due to Covid-19. However, it also means that you as an employer will process sensitive personal data about your employees. Therefore, you should ensure that the treatment of this data is limited to what is necessary if an employee calls in sick with Covid-19.

In relation to the Health Information Act, the Danish Working Environment Authority has assessed that if the information is necessary for an employer to be reimbursed under the Sickness Benefits Act, it will be possible to ask about the employee’s symptoms or illness. This will depend on a specific assessment, and you as an employer must ask about the employee’s symptoms or illness.

This also means that if an employee has symptoms of Covid-19 while the employee is working from home, the information will not necessarily have a significant impact on the employee’s ability to work in the position in question. It may therefore be contrary to the Health Information Act to ask about this.

For employees who are unable to attend their workplace because they or their relatives are at increased risk of being infected with Covid-19, it is possible for you as an employer to be reimbursed for sickness benefits during the employer’s period, but only if it is not possible to arrange the workplace or tasks in accordance with the Danish Health Authority’s guidelines, and it is not possible to allow the employee to work from home.

Read more about employment law here.