The new statutory rules on sickness absence - an overview

In March 2009, the Danish Ministry of Employment introduced a Bill to amend the Danish Sickness Benefits Act in order to strengthen the Government’s drive to keep people on sick leave in the labour market and reduce sickness absence rates. The Bill was passed in June 2009. The individual amendments came into force in three stages – most recently on 4 January 2010, when the provisions on mandatory sickness absence interviews and return-to-work plans came into force.

 

With the new rules came new requirements to employers and employees: The new rules require much more contact between the employer and the employee who is off sick. To many employers, the new rules mean that they will need to change their routines, for instance in connection with obtaining medical certification and holding sickness absence interviews.

 

Since the Bill was passed last summer, the Danish Ministry of Employment has issued guidance and guidelines on a regular basis to help employers comply with the new rules. One example is a guide published recently by the National Labour Market Authority which outlines the new rules on sickness absence and describes the procedure to be followed by employers in relation to off-sick employees. The guide is available here (in Danish).

 

Notwithstanding these guidance initiatives, many employers may find it challenging to adjust to the new landscape. In addition, the new rules have sparked a number of questions which have not – or only to a limited extent – been addressed in connection with the introduction of the rules. The purpose of this article is therefore to better equip employers in Denmark to navigate the challenges ahead. The article focuses on the new rules about sickness absence interviews, return-to-work plans and fit-for-work certificates and discusses a number of the issues that have arisen.

 

Sickness absence interviews

Subject to the provisions of any applicable collective agreement, employers used to have discretion over whether to ask an off-sick employee in for a meeting and, if so, what to discuss. With the new rules, a sickness absence interview must be held with employees whose first day of sickness was 4 January 2010 or later. The National Labour Market Authority’s guidance on sickness absence interviews is available here (in Danish).

 

Are sickness absence interviews mandatory?
Employers are now required to conduct an individual sickness absence interview with off-sick employees. They must therefore invite the employee to a personal interview to discuss how and when the employee can return to work. The interview must be held within 4 weeks after the first day of sickness. Basically, the interview must be held with all types of employee – including those working part time or with multiple employers.

 

However, if the employee in question is under notice and will leave within 8 weeks after the first day of sickness, no sickness absence interview will be required.

 

When and how to conduct the interview
The requirement that a sickness absence interview must be held within 4 weeks after the employee’s first day of sickness means that it will not be enough for the employer to notify the employee of the interview date before the end of the 4 weeks – the interview must be conducted within 4 weeks.

 

There are no formalities that must be complied with in relation to asking an off-sick employee to the interview. This can be done in all the usual ways, eg by telephone, email or post, although the most natural choice would often be to contact the employee by telephone. But if the employer foresees any difficulties in relation to having a constructive dialogue with the employee, Norrbom Vinding recommends that employers follow up the telephone conversation with written confirmation of the interview date. Also, the employee must be given reasonable notice of the date. According to the explanatory notes, a couple of days will usually be regarded as reasonable notice.

 

Duty to attend?
The employee generally has a duty to attend the interview unless this is made impossible by the employee’s illness or other circumstances. In that case, the interview can be conducted over the telephone instead, if possible.

 

The assessment of whether the employee is prevented by illness from attending in person or even by telephone will be made by the employee in consultation with a doctor. The explanatory notes mention hospitalisation as a valid excuse for not attending.

 

“Other circumstances” are described in the explanatory notes as situations where, for instance, the HR department is based at headquarters and the off-sick employee works from another location. In those situations, the interview may be conducted over the telephone instead.

 

Guidance exists for employers on obtaining information in connection with employees' sickness absence (available in Danish here), and it states that employers are entitled to interview off-sick employees about their sickness absence during normal working hours. The employee must show up, if possible, and any refusal to do so may therefore have consequences for the employee. It will always be important for the employer to clarify if there is a legitimate reason for the employee's refusal. Norrbom Vinding therefore recommends that employers seek legal advice before any sanctions are imposed.

 

What questions to ask at the interview?
As already mentioned, sickness absence interviews must be about how and when the employee can return to work. The aim is to determine how long the employee expects to be off sick and whether it would be possible to return to work sooner, eg a phased return, reduced hours, changed duties, etc.

 

Although it may seem natural for an employer to ask about the employee’s illness, employers must be careful. The Danish Health Data Act precludes employers from asking questions about the employee’s diagnosis as well as more general questions about the employee’s condition. On the other hand, the Health Data Act does not preclude employees from volunteering such information.

 

However, the Health Data Act does not preclude employers from asking about stated diseases or symptoms that will have a significant effect on the employee’s ability to perform the job. But the employer’s focus must be the employee’s functional capacity.

 

As a result of the Health Data Act, employers may therefore generally ask questions about:

As mentioned above, the Danish Ministry of Employment has issued guidance for employers on obtaining information in connection with employees‘ sickness absence (available in Danish here). The guidance outlines the restrictions imposed by the Health Data Act in connection with sickness absence interviews. The Ministry has also published a booklet with specific proposals for questions that may be asked at the interviews (available in Danish here). Specific advice for the “good interview” is available from the National Labour Market Authority here (in Danish). Additional advice can be found in the guide on sickness absence referred to above.

 

Duty to report information
When a sickness absence interview has been held, the employer must report this to the local authority. The purpose is to provide the job centre with an early indication of whether action should be taken by the local authority to help the employee. The information may be reported at www.virk.dk or by submitting a paper form available from the local authority.

 

Passing on information from sickness absence interviews
Here, too, employers must take care not to fall foul of the Danish Data Protection Act and its provisions about sensitive personal data. Under the Data Protection Act, data about an employee’s health may basically only be processed with the employee's consent. This means, among other things, that such data may not be communicated to others. The employee's consent is therefore required if the employer wants to inform the employee's colleagues about the employee's health situation. This may be a good idea if, for instance, the employee is going to have special needs for a period, as colleagues will often find it easier to accept if they know why.

 

Variation by collective agreement
The social partners may lay down by collective agreement more detailed guidelines for how to conduct sickness absence interviews, including their form and content. Although the requirement that the interview must be held within 4 weeks after the first day of sickness cannot be varied, the partners are free to agree that the interview must be held sooner than 4 weeks after the first day of sickness.

 

Return-to-work plans

With the new rules, employees are entitled to ask for a return-to-work plan at any point in the process if they expect to be off sick for more than 8 weeks. The new rules about return-to-work plans came into force on 4 January 2010.

 

The purpose of a return-to-work plan is to establish how the employee can return to work as soon as possible – by phased return, reduced hours, changed duties, etc. Apart from a requirement for the plan to be in writing, there are no specifics as to what the plan should include.

 

The National Labour Market Authority has issued a proposed template for a return-to-work plan (available in Danish here) and guidance on the return-to-work plan (available in Danish here).

 

Duty to prepare a return-to-work plan?
Subject to the provisions of any applicable collective agreement, it was generally left to employers to decide if a plan should be made for an off-sick employee's return to work.

 

This principle has been maintained with the new rules as employers may refuse to prepare the plan if they do not believe it is necessary. But if the new rules are to be effective, employers should not automatically refuse. And, indeed, there are often good reasons for preparing the plan.

 

A return-to-work plan can be a very good idea, particularly if the employer wants to keep the employee. The plan may be a motivational factor for the employee as it shows the employer's commitment.

 

A return-to-work plan may also be a good idea if the employer believes that the prospects of the employee returning are uncertain. If, eventually, the process ends with a notice of termination, a plan describing the parties' expectations to the return-to-work process may serve to illustrate that their expectations turned out to be mistaken and that the employer therefore had to terminate the employment.

 

Whatever the case, the employer should – before refusing a request for a return-to-work plan – find out if the employee’s absence is disability-related. If so, the employer will be required by the Danish Anti-Discrimination Act to implement appropriate and proportionate measures to enable the employee to perform the job. A return-to-work plan may therefore also be a good idea in that situation.

 

The employer can, of course, use the sickness absence interview and any meetings with the employee before or after the interview to get an impression of whether the employee’s absence is disability-related. Also in that situation, however, employers must be careful to comply with the Danish Health Data Act.

 

How the return-to-work plan affects the right to terminate
The explanatory notes mention several times that the employer's decision to provide – or not provide – a return-to-work plan will have no consequences under Danish employment law and that the new rules will not affect the employer’s right to terminate the employment.

 

Technically, it is correct that the amendments made to the Danish Sickness Benefits Act will not affect the parties’ rights and obligations under employment law. But, in Norrbom Vinding’s view, there can be no doubt that how an employer handles an employee’s sickness absence will be a theme in the same way as before if the employee ends up being given notice – and, here, we expect the new rules to become an element in the legal analysis.

 

Variation by collective agreement
The social partners may lay down by collective agreement guidelines for how to prepare a return-to-work plan, eg what to discuss when the plan is being prepared and what to include as a minimum. They may also agree that the employee is entitled to require a return-to-work plan or that the employer may refuse only for specified reasons.

 

Fit-for-work certificates

Since 5 October 2009, employers have been entitled to request off-sick employees to provide a fit-for-work certificate.

 

The fit-for-work certificate is a new medical certificate intended to replace the ‘medical certificate on incapacity to work’ form. The aim of the fit-for-work certificate is to shift the focus to what duties the employee is fit to perform in spite of the illness. The fit-for-work certificate will also provide a more detailed description of the employee’s work place and duties, which will provide doctors with a better basis for assessing which duties the employee would be fit to perform.

 

Employers may request a fit-for-work certificate at any point in the process where they would find medical certification relevant, ie in case of short-term, repeated and long-term sickness.

 

A ‘fit-for-work certificate’ form is available here (in Danish). The National Labour Market Authority has issued guidance on how to complete the form (available in Danish here), and the guide on sickness absence referred to above may also be useful here.

 

How to prepare a fit-for-work certificate?
Fit-for-work certificates are prepared in two stages. First, the employer must invite the employee to a meeting with a reasonable notice – which, according to the explanatory notes, means one week or so. Based on the meeting, the parties must describe the employee's functional reductions and the limitations imposed by the illness in relation to the employee’s normal duties. They must also propose what changes may be useful if the employee is to return to work. During the process, the employer must be careful to comply with the Danish Health Data Act.

 

The meeting may form part of the statutory sickness absence interview. The employee must show up for the meeting if it is held during normal working hours and the employee’s health permits. If the employee is prevented by illness from attending, the meeting may be held over the telephone instead.

 

The second stage is where the doctor completes the certificate based on an interview with the employee as well as the information resulting from the meeting between the employer and the employee. The doctor will provide a medical assessment of the employer's and the employee’s description of the employee’s functional reduction and fitness for work. In addition, the doctor will propose any workplace adjustments that may be implemented to help the employee return, and assess the duration of the period in which the adjustments should be made or in which the employee will be absent from work.

 

The employer may set a timeframe for when the certificate must be submitted. The timeframe must be reasonable, which, according to the explanatory notes, means 2 weeks.

 

What about the traditional medical certificate?
Importantly, it is specifically stated in the explanatory notes that the new fit-for-work certificate will not affect employers' rights and obligations under existing employment law, although the form used for the traditional medical certificate has been abolished. The introduction of the fit-for-work certificate will therefore not affect an employer's right to request other medical certification such as a certificate confirming that the employee is unfit for work, a certificate stating the duration of the absence, etc.

 

Even so, the abolishment of the form used for the traditional medical certificate has given rise to a great deal of uncertainty for doctors. In fact, some doctors have refused to issue medical certificates, referring to the new fit-for-work certificate.

 

This confusion has prompted the Confederation of Danish Employers to issue a new form that can be used instead of the traditional form that has been abolished. The new form is available here (in Danish).

 

In its most recent update to its members, the Organisation of General Practitioners in Denmark assumes that there will only be relatively few cases in which the traditional medical certificate (which will now no longer be based on a form) will be relevant. Norrbom Vinding notes that the information provided by the Organisation to all general practitioners in Denmark about medical certificates and their limited use is not consistent with the explanatory notes. In particular, in saying that a request for medical certification after a few days’ absence will not be of any use, the Organisation does not seem to appreciate the value of medical certification from an employment law perspective.

 

Consequences for the employment relationship

 

Employers' right to terminate in case of sickness absence
According to the explanatory notes, the new rules will generally not affect employers’ right to terminate the employment due to sickness.

 

As already mentioned, however, it must be expected that if an employer fails to conduct a sickness absence interview, ask for a fit-for-work certificate and/or, if so requested, prepare a return-to-work plan, the employee will most likely rely on these failures when trying to show unfair dismissal.

 

Employees’ failure to participate – consequences for the employment relationship
It follows from the general right to control and direct that the employer is entitled to discuss with the employee how the work should be performed and that the employee must participate in the discussion in good faith. As part of the employment relationship and if so requested by the employer, the employee must, if their condition permits, participate in good faith in any initiatives implemented in order to clarify the employee’s work situation. Any failure by the employee to do so may, depending on the circumstances, constitute a breach of the employment relationship and lead to disciplinary sanctions in the form of a warning or dismissal (with or without notice). Subject to an individual assessment in each case, disciplinary sanctions may be a possible outcome in the following situations:

As already mentioned, Norrbom Vinding recommends that employers seek legal advice before applying any disciplinary sanctions.

 

Consequences – sickness benefits

 

The Danish Sickness Benefits Act does not require off-sick employees to attend the sickness absence interview or participate in preparing a return-to-work plan. Failure to participate will therefore have no immediate consequences for the employee's sickness benefits entitlement or the employer's right to recover sickness benefit costs from the local authority. But if a return-to-work plan has been prepared, the employee must bring the plan along to the first follow-up meeting at the local authority.

 

If the employer asks for a fit-for-work certificate, the employee must participate actively. If the employee fails to show up for the meeting with the employer, their entitlement to sickness benefits from the employer will be lost with effect from the day when the meeting with the employer was to be held and until the day when the meeting is actually held. The same applies if the employee fails to submit the fit-for-work certificate within the timeframe set by the employer. But sickness benefits entitlements will not be lost if the employee has a valid reason for not attending. One example of a valid reason would be that the employee is prevented by the illness.

 

Loss of entitlement to sickness benefits from the employer will obviously only be relevant in relation to the period in which sickness benefits are payable by the employer (the ‘employer period’). If the meetings take place after that period, the employer will need to resort to the usual disciplinary sanctions. The same applies to employers who pay sick pay to their employees. In relation to the latter category, the employer may consider whether deductions can be made in the employee's pay if the employee does not participate. Some collective agreements specifically entitle the employer to do so. In other cases, this remedy may not be available. Norrbom Vinding recommends that employers seek legal advice before any sanctions are applied.

 

Other provisions in the Danish Sickness Benefits Act that have been amended

 

Up until now, sick employees who failed to participate in the local authority’s follow-up initiatives etc. without a valid reason would no longer be entitled to sickness benefits.

 

This will still be the case, but with the new rules employees will again be entitled to sickness benefits from the point when they decide to participate in the local authority’s efforts provided that they do so within 4 weeks after being notified that the benefits have been lost. The ‘cooling off’ period that has thus been introduced is primarily intended as a financial incentive for employees to think it over and decide to participate again.

 

The local authority must inform the employer when steps are taken to stop sickness benefits. For employers who pay sick pay to their employees, this will be relevant for their right to recover sickness benefit costs as this means that they are given an opportunity to react ( eg by imposing sanctions etc.) and thus shorten the period for which the costs are not recoverable and ensure that the employee will participate in follow-up initiatives before the end of the 4-week ‘cooling off’ period.

 

Amended rules about employer period and recovery of costs on phased return to work
The employer's obligation to pay sickness benefits during the employer period has also changed. If the employee leaves during the employer period, the employer will in most cases no longer be required to pay sickness benefits beyond the period of employment.

 

When the employer’s obligation to pay sickness benefits ceases on termination, the benefits will be paid by the local authority in the remainder of the employer period.

 

The local authority is competent to decide that the employee is fit for a partial return to work, and employers who refused an employee's request to return to work partially, eg on reduced hours, used to be entitled to recover only a portion of their sickness benefits costs. With the new rules, employers who refuse a request for a partial return will be entitled to recover their sickness benefit costs in full. In future, the local authority must, when the first meeting with the employee is held, enter into a dialogue with the employer about whether the employee is fit for a full or partial return to work.

 

Challenges in the future

As is clear from the above, the new rules place new demands on employers as well as employees. In order for the rules to be successful and operate as planned, all stakeholders will have to participate positively  – employers, employees, local authorities, unemployment insurance funds, general practitioners, etc.

 

Employers should ensure that their HR department is aware not only of the amendments that have been made to the Danish Sickness Benefits Act, but also of the relevant provisions of the Danish Health Data Act and the Danish Data Protection Act. Managers in charge of conducting sickness absence interviews should know how to clarify what duties an off-sick employee can and cannot perform – without falling foul of the Health Data Act and the Data Protection Act. In that connection, employers may want to consider whether it would be a good idea to prepare a questionnaire or similar document for managers to lean on during sickness absence interviews.

 

At a more general level, employers should also consider whether to prepare guidelines about the new sickness absence rules and what routines and procedures must be followed in sickness absence management. Employers who already have a sickness management policy in place should of course check if the policy needs updating.

 

If the new rules have the intended effect, they will lead to considerable cost savings for society in general and for employers as well. Each day, 150 000 people are absent due to sickness and recent years have seen a sharp increase in long-term sickness rates. If those rates can be reduced, it would benefit all of us.