Corona virus and its norwegian employment law applications

Corona virus and its norwegian employment law applications

An employer’s guide to handling of employment related matters relating to corona virus
Partner / attorney Svein Steinfeld Jervell
jervell@dalan.no / tlf. 0047 41 47 86 44

Introductory remarks

The global pandemic covid-19, also known as the corona virus, first had widespread transmission in Norway and within the Norwegian society at the beginning of March 2020. As a result, the Norwegian government, like government in other countries, have instigated a wide range of aggressive measures like quarantine, closing of schools and kindergartens, to limit the spread of the disease. Employers within many sectors have seen their activity partly dry up or come to a full stop. In order to mitigate these effects on business and their employees the Norwegian government has at the same time instigated certain countermeasures such as loans and guarantees. For how long the pandemic will last, and as a consequence – how long these effects will stay in place, is uncertain.
In order to address concerns from our existing clients and to provide legal assistance for our new ones in what we see as an extraordinary situation where answers may not be certain, we have provided this comprehensive guide to employment related matters. The guide will be updated going forward. If questions have not been addressed, please email me directly at jervell@dalan.no or to post@dalan.no.

The employment department in Dalan advokatfirma DA consist of seven attorneys who work daily with employment related issues. Our clients are businesses – ranging from multinational corporations to medium and small size businesses, we assist organizations, unions, employer organizations as well as employees and their representatives. We would like to think that our wide range of clients, as well as the fact a lot of them are recurring clients, proves our expertise and competence within the field. The Q & A below.

Temporary lay-off

  1. What is temporary lay-off?

With temporary lay-off, the employer’s duty to pay wages along with the worker’s obligation to work, are suspended for a limited time. It is thus an effective measure for the employer to limit salary costs. The state will undertake the obligation to pay wages after a warning of temporary lay-off has been issued and the employer-financed period is through.

  1. Can I lay off on a partial basis?

Yes, you can fully or partially lay off employees, though the partial lay-off cannot be less than 40 % of the full position. The lay-off can furthermore involve all employees or a certain group. If some employees are laid off and some are not, the individual selection must be justifiable.

  1. Can I temporary lay someone off due to the covid-19 pandemic?

Most probably, but temporary lay-offs must, no matter the extraordinary situation, be decided on a case-to-case basis. Temporary lay-offs must really be temporary, meaning that if shortages are permanent, the undertaking must reduce staff through ordinary redundancy procedures.

  1. Which procedural rules apply for temporary lay-offs? (temporary redundancy)

There are detailed procedural rules for temporary lay-offs and they have been substantially changed due to the covid-19 virus.

The employer must give written notice to the employees whereafter the lay-off occurs 14 days after the written notice is given. In cases of unforeseen events, a two day notice period apply. It might be that the covid-19 pandemic constitutes such circumstances, though it must be assessed on a case-to-case basis.

After the notices period, an employer-financed period of 2 days applies. The employer-financed period has been substantially shortened.

  1. For how long can employees be temporary laid off?

The maximum length of a temporary lay-off is 49 weeks.

  1. Were can I find more information on temporary lay-offs?

See section 13 in our overview on Norwegian Labour law.

There is also useful information in English on the government site: Regjeringen.no

The managerial prerogative

  1. What effects does the covid-19 pandemic have on the employer’s managerial prerogative?

The managerial prerogative, which is the employer’s discretionary authority to manage the business with its employees, is limited by the employment contract, collective bargaining agreements, legislation and the requirement of objectivity for their decisions.

Due to the extraordinary situation created by the covid-19 pandemic, the managerial prerogative stretches further than what is usually the case.

  1. What kind of decisions may I as an employer decide upon to limit the pandemic and protect the business?

There is a wide range of decisions that an employer can make. Which decisions that can be made must be assessed on a case-to-case basis. We will nevertheless specifically mention that the employer, most likely or in many cases, has the authority to:

  • Order several or all employees to work from home,
  • Expel workers from the workplace and order them to work from home if they are in a quarantine,
  • Remove or change lunch arrangements (for instance remove buffets),
  • Change working time arrangements and / or introduce shift arrangements to limit the risk of exposure to employees,
  • Impose overtime, especially for certain groups critical to the function of society, and
  • Assign different tasks of temporary nature that does not fall within the employee’s job description. The condition is that that the change in assignment is objective, for instance that it addresses the situation the business and / or the society are facing due to the pandemic.

Most likely, many employers give instructions to employees to work from home, regardless of them being infected or not. The managerial prerogative, which is the employer’s discretionary authority to manage the business with its employees, most likely goes further than what is usually the case. The condition is that the situation concerning the covid-19 pandemic warrants the decision.

Working time, with reduction in work

  1. Do I as an employee have to accept a kind of reduction in working time?

Yes, to some extent. Although if employees over a period of time work less than what follows from the employment agreement, it might be advisable to order that paid care leave is used as an alternative. As part of the package from the government to protect businesses and employees, care leave has been extended from 10 to 20 days, and the employer-financed period has been reduced from 10 to 3 days.

Paid care leave is especially practical for employees who need to take care of children, due to schools and kindergartens being closed. Employees can also apply for part time paid care leave, for instance 50 %. The employer would have to pay salary for the period but would be entitled to a refund from NAV (The Norwegian Labour and Welfare organisation).

If employees have previously worked additional hours, meaning they have extra time stored in the employer’s time bank, it might be advisable to order employees to take this time off.

  1. Can I ask employees to take holiday leave due to corona virus?

No, the employer may only order employees to take the minimum holiday leave during a year. The minimum leave is four weeks plus one day for employees below 60 and five weeks plus one day for employees over the age of 60. Furthermore, the employer can order that the so-called main holiday, comprising of 18 working days, must be taken out in the period between 1 June and 30 September. Lastly, the employer can demand that employees take out holiday in accordance with a holiday plan agreed upon with the employee.

As employers cannot order employees to take out holiday now due to the corona virus, it must be agreed upon by the parties, to come into force. It might nevertheless be an option if time in lieu of unpaid overtime and paid care leave has been exhausted or is not relevant, and the alternative is working full time, which might not be an option for the employee. If the situation lasts, the employee may demand – given certain criteria, and the parties agree – that the employee’s position is reduced from full time to part time.

  1. What about sick leave?

Employees who are sick due to corona virus are entitled to sick leave and sick benefits. The same applies to employees who have been ordered to self-quarantine by the health authorities. Information on self-quarantine is found  here.

As a countermeasure, the government has reduced the employer-financed period from 14 days to 3. Self-certified sick leave form (egenmelding) must always be used before a doctor’s certificate. It has been now been arranged so that doctors may issue sick leave certificates without personal attendance by the employee / patient.

Meetings and personal attendance

  1. Can I ask employees to show up (physically) for work?

In principle yes, as ordering employees to show up for work lies within the managerial prerogative. However, the health authorities have strongly encouraged that employees, if possible, work from home.

Following from case law there is a universal demand that the employer acts correctly and that orders are justifiable (saklige). It might very well be that in hindsight; ordering certain employees to be physically present at the office, rather than work from home, would be viewed as not justifiable.

If employees for all practical purposes can work from home, we advise that employers do not order them to work at the office.

  1. What about meetings, how do I arrange that?

The health authorities have strongly encouraged employers to avoid personal meetings and that they are held through telephone conferences, skype etc.

As a result, meetings that are not strictly necessary should be avoided. There are some meetings, which according to law should be held in person, such as consolidation meetings pursuant to the Working Environment Act Section 15-1, and dialogue meetings with NAV, doctors and sick employees. When it comes to dialogue meetings, NAV arrange for them to be postponed or held in other ways than physical attendance.

When it comes to consolidation meetings, it follows from the law that it must be held to the extent that it is practically possible, unless the employee does not desire such a meeting. If an employer is contemplating dismissing an employee, who is infected by covid-19, our guess is that a consolidation meeting can be held in some other form than a personal meeting. As dismissals cannot be based on employees being sick, they must be based on other circumstances, such as circumstances relating to the employee (unsatisfactory work performance, financial misconduct, disloyalty, negligence of orders etc) or the undertaking (redundancy measures).

Dismissals and redundancies

  1. What about dismissal processes, can they be initiated in this current environment?

Yes, although we would like to point out that the employer has a duty to take the employees individual position into account. Furthermore, employees who are sick have extra protection against dismissal, see the Working Environment Act Section 15-8.

For further information we would advice that you read section 15 through 20 in our e-book, available in English here. It is also available in Norwegian here. There are also many articles in Norwegian on the matter at www.arbeidslivsjuss.no

Legal assistance?

  1. Where can I find legal assistance?

We would of course be happy to provide assistance. You can send me an e-mail at jervell@dalan.no or use our contact form. You will also find other law firms like us that specialize in business law and employment law.