Duty to conduct sickness absence interviews

New Bill proposes to require employers to interview employees on sick leave.

Sickness absence rates must be reduced. This is the motive underlying the Bill to amend the Sickness Benefits Act that was recently introduced by the Danish Ministry of Employment. Some of the key employment law features of the Bill are the duty it will impose on employers to conduct sickness absence interviews and a new type of medical certificate called “mulighedserklæring” or the fit for work certificate. Return to work plans are also proposed in the Bill.

The Bill is the tangible result of the tripartite agreement on sickness absence that was made between the Danish Government and the social partners in September 2008. Backed by the political agreement to reduce sickness absence that was made on 5 November 2008, the tripartite agreement – and the Bill it has spawned – is intended to combat sickness absence through a variety of measures. The duty to conduct sickness absence interviews is one such measure – and the one that is likely to have the greatest impact on employers.

The Bill proposes a duty for employers to conduct sickness absence interviews with employees within the first 4 weeks of the sick leave. Exempted are departing employees who will leave within 8 weeks of the first day of the sick leave.

Challenges facing employers
What information from the sickness absence interviews employers must pass on to the authorities will be laid down administratively and guidance will be issued on how to conduct the interviews.

The explanatory notes to the Bill make it clear that there is no intention to change existing employment law. For instance, the Danish Health Information Act and its rules on what kind of health information employers may request still apply. Even so, the question of how to conduct sickness absence interviews can be expected to raise a number of challenges for employers as far as the Danish Health Information Act and the Danish Data Protection Act are concerned.

The Bill also proposes to allow employees to request a return to work plan from the employer if the employee is not expecting to return to work within 8 weeks. If the employer does not believe that a return to work plan is necessary, however, the employer may refuse.

”Fit for work certificate”
If enacted, the Bill will make it possible for employers to request what is known as a fit for work certificate. The certificate is an assessment of the possibilities of keeping the employee in the job. This assessment is twofold: The employer and the employee must together describe the impact of the illness on the employee's work and, secondly, a doctor must assess the degree to which the employee is fit for work based on the first assessment and an interview with the employee. The introduction of fit for work certificates should be seen in light of the fact that it is difficult for doctors to describe employees’ functional limitations in the existing medical certificates.

Finally, the Bill proposes to require employers to pay sick pay for the statutory employer period of 21 days only if the employee is still employed. An employee on sick leave whose employment is terminated in the statutory employer period will no longer be entitled to sick pay from the employer. Today, it is just the opposite: employers are required to pay sick pay for the entire statutory employer period – even if the employment ends at some point during that period.

If enacted, the Bill will enter into force on 6 July 2009. The provisions on fit for work certificates, however, will not enter into force until 5 October 2009 and the provisions on sickness absence interviews and return to work plans not until 4 January 2010.

Norrbom Vinding will be following the Bill’s passage through the Danish Parliament.

Some of the measures proposed by the Bill to combat sickness absence are: