The Danish Parliament has just passed a new Act allowing employers to order that their employees be tested for COVID-19 and provide information on the test results.
1. The object of this new Act
Denmark, as the rest of the world, is still seriously affected by the COVID-19 crisis and, based on the consideration that the government is anxious that we keep economic activities in Denmark at the highest level possible, the Danish Parliament has now passed an Act on Employers' Right to Order that Employees Take a Test for COVID-19, etc.
The object of the Act is, among other things, to provide the employers with the legal tools required to test employees for COVID-19 if:
- it is considerably justified by the regard for limiting the dissemination of infection with COVID-19
- it is justified by material operational concerns.
Adoption of the Act must also be seen in recognition of the fact that the Danish Act on the Use of Health Data etc. on the Labour Market (helbredsoplysningsloven) now in force does not provide adequate options for employers to order that their employees be tested.
2. The rights of the employer
It appears from s. 1(1) of the Act that:
"According to ss 2-4 of the Act, employers may order employees to take a test for COVID-19 as soon as possible and to inform the employers of the test result".
Consequently, the Act applies to employment relationships only, and any testing ordered by authorities pursuant to epidemic legislation falls outside the scope of such rules, just as, for example, collective agreements on the testing of employees are not subject to the Act either.
Pursuant to the Act, employers may concurrently or separately order that any employee provide the employer with information on such testing as soon as possible, including information on the time of testing if the employee has tested COVID-19 positive.
This rule is intended for tests which are taken by an employee at his/her own discretion and which lead to a COVID-19 positive result.
In the event that the test result is not available in electronic form, the result and the time of testing must be otherwise documented towards the employer, if possible by way of a solemn declaration from the relevant employee. The employer does not have any right to receive information other than the test result itself as well as the time of testing.
It appears from the travaux preparatoires that the fact that an employer is entitled to order that any employee be tested as soon as possible implies that an ordered test must be taken within the time frame stipulated by the employer, which may be as soon as possible, but which may also be within a specific deadline.
It is important to note that the Act allows employers to order that employees be tested for COVID-19 only and, consequently, the Act does not open up for employers being entitled to order that employees be tested for other diseases, including antibody tests for COVID-19.
In addition, it follows from s. 1(2) of the Act that employers may order that any employee provide the employer with information on such testing as soon as possible, including information on the time of testing if the employee has tested COVID-1 positive.
3. Situations where the employer may order that employees be tested
Employers may order that employees take a test for COVID-19 only if one of the following conditions exists:
- It is objectively justified by the regard for limiting the dissemination of infection with COVID-19
- It is justified by material operational concerns in respect of the business in question.
This implies that qualified reasons must exist for employers being entitled to order that their employees be tested.
It is a requirement that the employer notifies the affected employee in writing in accordance with applicable rules indicating that the employee will be ordered to take a test for COVID-19 and the employer's reasons for doing so.
In accordance with relevant legislation and any collective agreements, such information must also be given to the employees via works council representatives, etc., or via a working environment representative.
4. How to complete the test
In events where, pursuant to the new Act, an employer orders that an employee take a test for COVID-19, it is a requirement that the said test be completed to the extent possible during the employee's normal working hours.
If it is not possible to complete the test during the employee's normal working hours, the employee must receive financial compensation for the time spent by the employee on taking the test. In addition, the employee must receive compensation for any reasonable expenses incurred in connection with the completion of any ordered tests (such as transport expenses).
The rules do not prevent the employer and the employee from agreeing that any test will in all circumstances be completed outside the employee's normal working hours.
Any test ordered by the employer must be completed in a satisfactory way in accordance with the rules and guidelines laid down by the relevant authorities. This rule applies irrespective of whether the test is taken in the workplace or outside the workplace.
The employer may obviously not order any employee to be tested by individuals who do not possess the required specialist skills forming the basis of satisfactory testing.
If any ordered test is performed in the workplace by employees or the employer, any employee, who does not wish to be tested by colleagues or the employer, is entitled to take a test outside the workplace subject to the condition that the object of the test is not forfeited in whole or in part.
5. Employees' right to refuse compliance with any order given by their employer
It appears from the new Act that any employee who does not comply with an order to be tested in accordance with the rules may be met by employment law sanctions (such as reprimand, warning, lay-off for a specific period without pay, termination), provided that, in connection with the order, the employee has been notified in writing that such sanctions may be enforced on failure to comply with the order.
In addition, any employee who does not comply with the duty of disclosure laid down in the Act may be met by employment law sanctions.
Ultimately, it will be for the courts to decide to which extent termination of an employee, having refused to comply with an order from the employer to take a test, is reasoned pursuant to the rules applicable to the employment relationship.
In events where an employee has been ordered to take a test without the conditions laid down in the Act having been fulfilled, compensation may be awarded to the employee.
Comments by Bech-Bruun
It is requisite that employers assess in each specific case to which extent a basis exists for, for example, ordering that an employee take a test for COVID-19, just as employers must at all times comply with the rules laid down in the new Act, including the rule of notification.
The employer's right to demand that employees take a test for COVID-19 and disclose the test result also implies that health data constituting sensitive personal data is processed.
Therefore, this new option is also of importance in terms of data protection law which must be taken into consideration.
This also means that the employer must update its Article 30 list to the effect that it appears that such types of data are now registered.
Bech-Bruun stresses the importance of compliance with the general data protection law principles. This implies that substantial reasons must exist for the employer to demand information on the employees' COVID-19 test results, which is also a statutory requirement.
In addition, employers must remember to indicate the statutory basis for the processing of personal data as well as set out any final deletion dates in respect of the data on the employees' COVID-19 tests. In that connection, it follows from the passed bill that employers are entitled to store such data only as long as it is appropriate considering the objects of the Act.
For more information
If you have any questions, please do not hesitate to contact Lise Lauridsen, Sandro Ratkovic or Susanne Stougaard. You are also welcome to get in touch with your Bech-Bruun contact.