COVID-19: Guidance for Employers in Denmark

The outbreak of Novel Coronavirus (COVID-19) has become a worldwide pandemic and the first case of COVID-19 in Denmark was detected on 27 February 2020. Immediately thereafter, the pressure of infection increased and resulted in the implementation of restrictions on large parts of Danish society.  

After positive developments during the summer, Denmark experienced a substantial increase in infection pressure throughout the autumn and winter. This means Danish society has been locked down since December.  As a result of the vaccine program rollout and the tightening of restrictions on everyday life, Denmark is now experiencing a decrease in the infection pressure and the Danish Government has announced a plan to begin the reopening of society.   

As parts of Danish society are still closed and as many restrictions are still in force, this may understandably create some questions for you and your workforce.
 
Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people. 

The latest updates and the employers' obligations in respect of COVID-19

As of 19 April 2021, the next phase in the reopening process in Denmark has commenced. Please find the most relevant initiatives below.

Prohibition against gathering:

As of 19 April 2021, the Government decided to increase the limit on gathering in large groups outside from 10 to 50 people. However, special restrictions apply for special areas, e.g. sports etc. 

The limit on gathering inside has increased from 5 to 10 people.

According to the reopening schedule, the Government plans to phase out the limit on gathering according to the following model. This will, however, depend on the general infection pressure in the community.

There are some exceptions to the limit on gathering, as this does not apply to workplaces, gatherings with a political purpose, cultural activities, supermarkets, shops and shopping malls etc. (please see examples below). Furthermore, it is still not clear how the above schedule will affect larger arrangements such as festivals etc. 

Restaurants and bars:

As of 21 April 2021, all restaurants, bars, pubs etc. are allowed to reopen for both outdoor and indoor service. 

For indoor service, the following rules must be complied with:

• Reservations must be made at least 30 minutes beforehand
  
  
• Guests must wear masks
  
  
• All guests must have a so-called “COVID-19 Pass”, which entails that:
  • you have been vaccinated,
  • you can provide a negative COVID-19 test which is maximum 72 hours old, or
  • you can provide a positive COVID-19 test which is 14-180 days old. 
    
    
• Special rules regarding indoor space
  
  
• Maximum 10 guests per party
  
  
• All restaurants and bars must close at 11 PM and are allowed to open the following day at 5 AM.
  

Currently all countries are divided into 3 categories: yellow, orange and red depending on the infectious level in each country. The list of countries and their categories is updated on a weekly basis and can be followed here (only in Danish). 

Special rules apply to the different categories, please find a quick overview below:

In addition, the Danish Government has adopted an act, where all companies with foreign employees must ensure that the employees are tested for COVID-19 after entering Denmark from certain countries. With a new executive order, more detailed rules have been provided on these requirements that companies must comply with, as well as when employees are exempt from the requirement to isolate. This includes, among other things, that travelling workers covered by the act must show a negative COVID-19 test, which is less than 24 hours old when entering Denmark (the first test). Workers covered by the act must then be tested no later than 24 hours after entry into Denmark (the second test) and again (the third test) between 48 to 96 hours after the first test. 

General initiatives from the Danish Government:

The Danish Government has also put forward a number of initiatives, discussed further below, which continue to apply.

Employers should generally ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations as well as a general duty of care towards their employees and should keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees.

As such, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection. Employers should circulate up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitiser. We recommend issuing a reminder on action that employees can take to help stop viruses like coronavirus spreading. Such advice may include:

• cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze;
  
  
• put used tissues in the bin immediately;
  
  
• wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available; and
  
  
• Try to avoid close contact with people who are unwell.

We further recommend notifying employees where they can access more information, such as such as from the Ministry of Health of Denmark^[1], or the national COVID-19 hotline + +45 7222 7459. For general advice about travel and foreign affairs, the Danish Ministry of Foreign Affairs of Denmark's Citizen Service^[2] can be contacted at +45 3392 1112. Generally, the current recommendation is to not travel outside of Denmark. 

How should employers react if they keep their workplace open for (some) employees? 

The Danish Ministry of Industry, Business and Financial Affairs has published guidelines on how to properly organise offices, workplaces etc. when the employer reopens the workplace after lockdown or if the employer keeps the workplace open for (some) employees.

In summary, Government urges employers to let their employees work from home, if possible. If the company is open for (parts of) the employee, the employer should consider to follow the guidelines stipulated below:

Organisation of work

Among other things, the employer must organise the work so that a part of the workforce continues to work from home. The employer must also ensure that there is the required social distancing space (i.e. 2 meters) between those employees who do attend work. For those employees who do attend the workplace, their working hours should be arranged as flexibly as possible to ensure as few employees as possible are using public transportation during rush hours and to minimize the number of employees arriving at work at the any one time. 

Physical meetings (including courses, business travel, etc.) should be avoided to the greatest extent possible. 

Arrangement of the workplace

The employer must arrange the workplace in a manner to minimise the risk of infection and to ensure it is possible to maintain social distancing among employees. This means, among other things, that employees should be seated with (at least) 1 meter between them and the employer should inform employees about guidelines on how to use the canteen, meeting rooms etc. 

Behaviour and hygiene

The employer must also ensure that there is enough and the right equipment for employees to sanitise. This includes providing hand sanitiser for all employees and ensuring that the cleaning of the office is done properly and in accordance with the guidelines. 

Providing information to employees

Furthermore, the employer must inform employees about the infectiousness of COVID-19 and the authorities' recommendations on how to avoid the spread of the disease.

Can employers request or require information from an employee, customer of workplace visitor about potential or actual exposure to the virus?

The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment.  

Danish employers are under a duty to provide a safe and secure working environment under the Health Environment Act. The collection of such data may be necessary to protect the health, safety and welfare of other employees. Moreover, Danish employees are subject to a general obligation to notify their employer if they have been infected with coronavirus, or if they suspect they may have been infected, because this is an infectious disease. Employers are, on the other hand, generally not allowed to ask employees about any symptoms of diseases, c.f. the Health Act. Any such data must be processed in line with the applicable privacy requirements.  Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and, accordingly, additional requirements and obligations apply to the processing of such data. Despite the General Data Protection Regulation (GDPR) being EU-wide legislation, the position  is complex from a European data privacy perspective. We set out below the position in Denmark, but also have available to you our cross-jurisdictional Q&A on important HR data related questions available here. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country. 

On 20 March 2020, the European Data Protection Board (the European data protection advisory body, formed of representatives of national data protection authorities) (EDPB) published a formal statement in relation to COVID-19.  In relation to whether an employer can disclose that an employee is infected with COVID-19 to their colleagues, the EDPB advises that this should be done only where necessary (e.g. in a preventive context) and where national law allows this. In such a case, the concerned employees should be informed in advance and their dignity and integrity should be protected. 

The Danish Data Protection Authority (DPA) has also issued very brief guidelines on the employer's ability to collect and disclose information about its employees in relation to the COVID-19 outbreak. The guidance states that an employer's ability to ask employees questions related to COVID-19 and employees' duty to inform their employer is governed by the applicable employment and labour law legislation.

In line with that legislation and Danish data protection legislation, an employer can record and disclose information that is not specific enough to be considered health information, such as: 

• that an employee has returned from a so-called “risk area”;
  
  
• that an employee is in home quarantine (without stating the reason); or
  
  
• that an employee is ill (without stating the reason).

Further, it is permissible to record and disclose health information (e.g. that an employee is infected with coronavirus) if the processing is legitimate and limited to what is necessary.^[3] The processing will only be legitimate if:

• there is a good reason to collect or disclose the personal data in question;
  
  
• it is necessary to specify the personal data (i.e. could the purpose be achieved by "telling less"); and;
  
  
• is necessary to name the relevant employee;

The Danish DPA has not identified the relevant legal basis for the employer's processing of health information on its employees in relation to the COVID-19 outbreak. However, in Denmark the employer should be able to process such health data by relying on Article 9(2)(b) GDPR and possibly also Section 12 of the Danish Data Protection Act on the basis of the health and safety duty referred to above. 

Even if generally the employer may not ask the employee for symptoms and cause of illness, due to the severity of the COVID-19 outbreak combined with the employer's responsibility to ensure a safe workplace pursuant to the Work Environment Act, we consider it legitimate and reasonable for the employer to ask employees to inform if they are experiencing symptoms. 

Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site. 

• Where this applies, the employer should as a starting point seek to provide generic reassurance to the client / customer.
  
  
• If this does not suffice, employers should consider whether there are grounds for the employer to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties, if requested and if they are happy to do so.
  
  
• Unless there is a clear legal obligation on the employer to do so, and these may exist in sector specific laws, employee consent is likely to be the only applicable legal basis for sharing such information with third parties. To be valid, consent must be freely given.
  
  
• The employer must not oblige employees to provide this information to third parties and must consider carefully what, if any, further action to take if the employee refuses to do so. There is a risk that where the employer requires employees to attend client sites, any employee consent to the provision of information in order to access those sites would not be freely given and therefore not valid.

The position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required. The position will need to be kept under review as the situation evolves and further guidance becomes available.

What should employers do if an employee is absent or infected?

Infected employees

If an employee is infected with COVID-19, the employee should stay at home until formally declared well again.

Where a working environment committee has been established, it should be informed and the work environment risk impact assessment and action plan should be followed. Where the employer is bound by collective agreement(s), trade union representatives should also be informed (trade unions having a general right to information on health and safety issues). 

If COVID-19 materially impacts the employer's business operations necessitating the employer to, for example, change working hours or engage agency staff, engaging the employees or trade union representatives (if any) early on is advisable. When informing working environment representative(s), members of the working environment committee and/or employees/trade union representatives (if any), employers must be very careful to balance the privacy of the individual(s) concerned with the public interest in avoiding the spread of the virus. However, since COVID-19 is classified by the Danish Government as a disease threatening public safety, our assessment is that employees are allowed to provide the identity of COVID-19-infected employees to the safety delegate(s). 

An infected employee will either be entitled to sick pay or the state sickness benefit (if on sick leave and unable to perform work). Please see further below on the new rules re. reimbursement.

In addition to the priority of health protection, the employer should develop a plan going forward as to whether and how operational processes can be maintained. 

Where possible, the employees should work from home regardless to contain the risk of infection.

Potentially Infected Employees

Where there is a reason to believe that an employee poses a risk to the health of other employees, for example, because they have been in a risk area or had close contact with an infected person, the employer should request the employee to undergo a medical examination. Until the results are available, the employee could be either instructed to work from home or, where working from home is not an option, released from work duties with full pay. Please see further below on the new rules re. reimbursement.

Bulk absentees

If there are too many absentees, employers can order the employees who are in the workplace to work temporary overtime subject to individual agreement, applicable laws and collective agreement(s). Employers can also consider engaging temporary staff and agency workers. 

Refusals to work or travel

Employees are obliged to perform work and unlawful absence from work due to fear or abstract risk of an infection may constitute grounds for summary/immediate termination. Thus, employees cannot refuse to attend nor perform work from home, nor can employees refuse to travel. This is unless the Danish Ministry of Foreign Affairs has issued a travel restriction for the relevant destination which is currently the case. We would, however, regardless recommend that employer's respect an employee refusal to travel if the employee is not comfortable with the travel.

What are employers' obligations where offices are partially or fully closed?

As a starting point, employees will remain entitled to full salary and benefits in accordance with their employment contract and applicable laws and collective agreements. Where possible, employees should be instructed to continue to perform their work duties, but from home.

Employees who are on sick leave are entitled to sick pay or state sickness benefit and employees who are quarantined are generally also entitled to full salary during the quarantine. Please see further below on the new rules regarding reimbursement.

In terms of directing employees to take holidays, there is an exemption to the mandatory notices under the Danish Holiday Act if there are "special circumstances". Special circumstances may exist if, for example, the circumstances could lead to the employer's financial breakdown. If the company's employees can work from home, and this will not (to a great extent) affect the operation of the company, the employer will most be required to give notice. However, for companies where operations are reduced or the company risks a financial breakdown because employees cannot work from home, it is likely that it will be possible to require that accrued holiday is taken with a shorter notice period.

It is our impression that Danish employers on a mass scale have or will adopt the position that the above requirement (risk of financial collapse) under the current state of things is fulfilled and that it is therefore possible to instruct employees to take any accrued holiday without observing the otherwise applicable notice requirements. However, the employer cannot require that the employee takes non-accrued unpaid holidays, unless this is in relation to the salary compensation plan passed on 24 March 2020 (outlined  further below).

What initiatives have been introduced by the Danish Government in response to COVID-19?

Currently, the Danish Parliament are in negotiation on the renewal of the current initiatives and introduction of new initiatives. 

Changes to the Danish Sickness Benefit Act:

The Danish Government has on 17 March 2020 passed a bill amending the Danish Sickness Benefit Act (L135) as follows:

• Sickness benefit reimbursement may be granted to employers for salary or sickness benefits paid during the so-called "employer period" from the employee's first day of sickness absence for employees who are unable to work as a result of his/hers own sickness due to COVID-19. Under the current rules, the employer is as the main rule only entitled to reimbursement after 30 days of continues sickness (still the case for sickness not related to covid-19). 
  
  
• Furthermore, an employer may be entitled to reimbursement in the event that the employee is unable to perform their work due to a recommendation from the Danish health authorities to certain groups about staying home due to specific circumstances related to COVID-19 (quarantined employees). The employee must be unable to work from home. This is an exception to the current rules where the employer only receives reimbursement on the basis of the employee's illness.
  
  
• An employer will not, however, be entitled to reimbursement for an employee who does not fulfil the standard employment requirements stipulated in the Danish Sickness Benefit Act. These are:
  • On the first day of absence, the employee must have been employed by the employer continuously for the previous 8 weeks before the absence and during this period performed work for at least 74 hours.
  • In the event that the employee is working from home in whole or in part, the sickness benefit will have to lapse completely or partially.

• Since this is a temporary initiative as a result of COVID-19, the proposed bill includes a cessation clause, which states that the temporary rules will cease on 1 April 2021 (if they are not prolonged).

• Please see (in Danish): https://www.ft.dk/samling/20191/lovforslag/L135/som_fremsat.htm

Initiative regarding more flexibility to the rules on reduced working hours

The Danish Government on 12 March 2020 implemented changes that increase flexibility in the rules on reduced working hours, as follows:

• The current rules on division of labour/reduced working hours still apply.
  
  
• The Minister of Employment has made the scheme more flexible meaning that the deadlines for the application have been made shorter and it is possible to switch to another of the applicable agreements for the division of labour when a cycle in the division of labour is completed. The relevant (current) application form can be found here (in Danish):  https://www.klxml.dk/KLB/Blanket/Gaelder/ab292.pdf.

• Please see (in Danish): : https://bm.dk/media/12851/faktaark-om-arbejdsfordeling.pdf

Where can employers and employees access local and national advice?

• The Public Health Agency of Denmark ("Sundhedsstyrelsen"): https://www.sst.dk/corona and https://politi.dk/coronavirus-i-danmark
  
  
• The Denmark Work Environment Authority ("Arbejdstilsynet"): https://at.dk/
  
  
• The national COVID-19 hotline: + 45 7222 7459
  
  
• The Danish Ministry of Foreign Affairs of Denmark ("Udenrigsministeriet"): https://um.dk/
  
  
• The respective Regions: As for Copenhagen: https://www.kk.dk/corona
  
  
• The Danish Business Authority: https://erhvervsstyrelsen.dk/ and https://virksomhedsguiden.dk/erhvervsfremme/content/ 

Last updated 21 April 2021

[1] https://www.sst.dk/corona and https://politi.dk/coronavirus-i-danmark

[2] https://um.dk/ 

[3] GDPR article 9 (2)(b), c.f. Section 7 (2) and 12 of the Danish Data Protection Act