Managing HR through COVID-19
A Practical Guide For Multinational Employers
Prepared by Advokatfirmaet Thommessen AS
As at March 30, 2020
This publication will help employers manage HR legal and practical issues arising from COVID-19.
- Good Practice Guidance giving high-level consideration;
- An Action Point Checklist drilling down into the detail; and
- Answers to Key Questions facing employers in Norway.
This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.
It has been prepared by Advokatfirmaet Thommessen AS and is published with their kind permission. With thanks to:
Advokatfirmaet Thommessen AS | Stein Kimsås-Otterbech | firstname.lastname@example.org | www.thommessen.no
There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:
1. Keep up-to-date with accurate information
It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.
2. Know where your employees are and where they have been
An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.
3. Communicate with your employees
Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.
4. Provide a safe platform for employees to raise concerns
Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.
There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.
5. If you can be flexible, then be flexible
Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).
This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.
6. One size may not fit all
While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.
Action Point Checklist
In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.
- Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
- Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
- Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
- Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
- Ensure contact details for all staff are up-to-date.
- Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
- those who travel frequently to countries where there is currently or may well in future be a risk of infection.
- those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
- Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
- Review planning for the possibility of large scale absenteeism. For example:
- Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
- Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
- Considering flexible work patterns, such as employees working from home.
- Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).
- Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
- What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
- Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
- Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
- Ensure managers are aware of the relevant workplace policies.
- Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
- Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
- Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.
- Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
- Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
- How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
- Who will have the authority to determine changes to policy and issue any new communications to staff?
- Subject to the restrictions governing the processing of employee personal data, log employee business travel before it is booked and check against the latest travel protocols. Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
- Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
- Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.
As at March 30, 2020
1. What are an employer’s main legal obligations?
The main areas of an employer’s legal liability associated with COVID-19 in the workplace include:
- Ensuring that the working environment is fully satisfactory pursuant to the Norwegian Working Environment Act. The standard of Health, Safety and the working Environment (“HSE“) in the company shall be continuously developed and improved in accordance with developments in society.
- Complying with the ongoing advice from the national health authorities and the measures taken pursuant to the Infectious Disease Control Act and other relevant legislation.
- The employers’ HSE-measures should be regularly updated based on measures from the Norwegian Government and the ongoing advice from the Norwegian Institute of Public Health (“NIPH“), the Norwegian Business and Industry Security Council (“NSR“), and the Norwegian Ministry of Foreign Affairs. Compliance in this regard is also necessary to ensure a fully satisfactory working environment in accordance with developments in society.
- Complying with the data protection legislation, including the Personal Data Act and the General Data Protection Regulation (“GDPR“).
- Employers should follow advice from the Norwegian Data Protection Authority to ensure that the employees’ data protection is safeguarded during the COVID-19 situation.
- Complying with obligations pursuant to the employees’ individual employment contracts. For example, continuing to pay salary and ensuring that the employees work within the terms of the employment contract.
- If the COVID-19 outbreak causes legal grounds for implementing temporary lay-offs, terminations, or permanent redundancies, employers must comply with the current rules for such measures. These include, inter alia, provisions in the Working Environment Act, the National Insurance Act, and the Act on the Obligation to Pay Salary during Lay-offs.
2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?
There is no statutory requirement in Norway that directly instructs employers to have a workplace plan to deal with COVID-19. However, as part of the employer’s obligation to ensure a fully satisfactory working environment, risk assessments regarding COVID-19 must be conducted to reduce the risk of infection in the workplace. The risk assessment shall be conducted in collaboration with the employees and the employee representatives.
We recommend that employers both prepare and implement a detailed plan for dealing with workplace health and safety issues in regards to COVID-19. This will ensure the employer is prepared to cope with the COVID-19 outbreak. The response plan should involve a description of the current situation, preparations to prevent an outbreak in the workplace, measures to deal with potential outbreaks, and the steps to be taken after an outbreak has occurred. Both workplace health and safety issues for employees and business continuity issues should be covered.
3. What should a workplace COVID-19 response plan cover?
There are no statutory requirements in Norway as to what a COVID-19 workplace response plan should cover. However, the response plan should be based on the current measures from the Norwegian Government, the health authorities’ ongoing advice to reduce infection, and the relevant legislation. Based on these sources, the response plan should cover the following:
- Description of the current situation
- Mapping of the company’s economic and personnel challenges due to COVID-19
- Measures to manage the current situation, both in relation to economic and personnel challenges
- Providing sufficient information to the employees
- According to the Working Environment Act and associated regulations, employers are required to involve and inform the employees about the company’s systematic HSE-work. This means that the employees must receive sufficient information about the company’s HSE-measures even before any infection should occur in the company. Hence, the response plan should specify that all employees will be informed about the impact that the company’s measures will have on employees during the development of the infection.
The general guidance in the Appendix covers many essential points, and should be used in addition to the above.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
Yes. By virtue of the employer’s management prerogative, employers may instruct the employees to work from home due to the risk of infection in the workplace. In such cases, the employees will be entitled to their normal salary.
5. Can I direct an employee to see a doctor?
No, the employer cannot require that employees see a doctor by virtue of the employer’s management prerogative. Such instructions will interfere with the employee’s right to liberty, etc., and require a special legal basis. However, the employer may encourage the employees to see a doctor.
We note that employees have the right to be absent from work due to sickness by using a so-called “self-certified sick leave” for a period of three days. They are not required to obtain a medical certificate from a doctor to be absent from work in this period.
We also note that the Government has adopted a temporary regulation on exemptions from the National Insurance Act and the Working Environment Act with effect from March 16, 2020. According to previous rules, the employer was obliged to pay sick pay to employees for a period of 16 working days if the employees were absent from work due to sickness. From the fourth day of absence, the employer could require a medical certificate to document the employee’s sickness. Pursuant to the new rules, the employer’s salary obligation is reduced to three days, and the State will in effect contribute to a larger part of the expenses. After the employer’s period of three days, the employee may be eligible for sick pay from the National Welfare Service (Nw: NAV) for up to 52 weeks. Pursuant to the temporary legislative amendment, the employer has no need to require a medical certificate from employees.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
Unless otherwise agreed, the normal conditions in the individual employment contract apply during the COVID-19 outbreak. However, the normal way of dealing with the COVID-19 situation in Norway is to implement temporary lay-offs.
In Norway, a lay-off is a temporary arrangement where the employee is released from the obligation to work and the employer is released from the obligation to pay salary. It is possible to implement both full and partial lay-offs. Due to the COVID-19 outbreak, the Government has adopted several temporary legislative amendments to make the lay-off rules more flexible to help companies that experience economic challenges in reducing their costs.
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
Yes, provided that the measure does not involve a significant change in the employees’ working conditions.
According to Norwegian non-statutory law, all employers have a general management prerogative. Unless the employer has particularly waived the right to manage in a certain topic/subject, the employer may, within the framework of current legislation and collective agreements, change contractual provisions that do not characterize, define or appear to be material to the employment. This means that employers have a wide right to change the employees’ working conditions within the framework of the employment.
We assume that the right to manage will be somewhat wider in the current and extraordinary situation, which presumably will be temporary. Hence, we assume that employers unilaterally can make relatively far-reaching temporary changes in terms of what tasks the employees should perform, where they should be performed, and when they should be performed. However, this must be considered individually in each case.
We note that the employer cannot unilaterally change working conditions that must be considered as part of the individual employment contract. For example, the employer cannot impose salary reductions without consent from each individual employee. Further, the employer cannot unilaterally change the employees’ workplace if this is considered to be a significant change in the employees’ working conditions (however this will seldom be the case).
8. Can I direct my employees to report suspected cases of COVID-19?
No. Employees are not obliged to disclose the (suspected) infection of colleagues. An instruction on such reporting from the employer may lead to unnecessary dissemination of sensitive personal data, and may also have adverse effects on the working environment. Our assessment is that employers generally cannot require employees to report the (suspected) infection of colleagues.
Information about infection and suspicion of infection constitutes health information about the employee, which falls under “special categories of personal data” in data protection regulation. There are strict rules for processing such personal data, and the employer must have a special legal basis. According to the Personal Data Act, such information may only be processed when it is necessary for the purposes of carrying out labor law rights or obligations.
However, we note that the employer’s duty to ensure a fully satisfactory working environment and to protect the (other) employees against infection risk, etc., may, depending on the circumstances, provide a legal basis for informing the employer that individual employees are infected, e.g., if it is suspected that other employees may also be infected. This must be considered individually in each case. Furthermore, the employer must limit such information to what is necessary to protect the workplace against risk of infection. Generally, this means that the information must be anonymized as far as possible, and that the employer only informs employees who may have been in contact with the (suspected) infected person in the days before the person in question started to have symptoms.
We note that the employer may instruct all employees to report if they suspect that they have been infected by COVID-19. The employee may also be required to indicate which colleagues they have been in contact with in the days before the symptoms started. The employer must ensure that such information is kept confidential and in accordance with the current data protection legislation, and that the information is only being used to prevent infection in the workplace.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
It depends. Unless otherwise agreed, the general starting point is that the employee cannot refuse to attend work without breaching the employment contract. If the employee stays at home solely for their own fear of infection, the general starting point is that the employer has grounds for withholding wages and even sanctioning the employee with warnings or termination/dismissal (in severe cases).
However, the situation may be different if the employer has not implemented any measures to ensure that the working environment is fully satisfactory. If there is a high risk of infection at the workplace, the employee may, depending on the circumstances, be entitled to stay at home.
10. Can I screen employees and customers before allowing them to enter the workplace?
Screening measures by employers seeking to monitor the situation of infection and to maintain a safe workplace will in general be considered to be a significant interference in the employees’ privacy. Hence, such measures must be prescribed by law to be permissible, and the subsequent processing of personal data requires a specific legal basis. The employer cannot conduct screening of employees or customers by virtue of the employer’s management prerogative.
Depending on the relevant screening measures, our assessment is that employers cannot generally screen employees or customers before allowing them to enter the workplace. As far as we know, there is no legal basis for such measures in the current COVID-19 situation.
CONTACT: Advokatfirmaet Thommessen AS | Stein Kimsås-Otterbech | email@example.com | www.thommessen.no
Appendix: Workplace COVID-19 Response Plan
A plan should deal with the following (please also refer to question 3 above):
BEFORE AN OUTBREAK
- Preventive measures.
- Disinfecting the workplace regularly.
- Maintaining good indoor ventilation.
- Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
- Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
- If employees are required to travel to areas known to have the virus, whether such travel is necessary.
DURING AN OUTBREAK
- The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
- Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
- Where employees will work, e.g., home, in the office or in alternative temporary offices.
- At what stage will the workplace be closed and who will decide that.
- How to deal with infection and/or deaths of colleagues, e.g., counselling.
- A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
- What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).
AFTER AN OUTBREAK
- Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
- Rehabilitation for sick employees returning to the workplace.
Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:
- Discuss with staff the possibility of a workplace closure prior to closing.
- Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
- Allow employees to work from home.
- Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.
Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.