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    Managing HR through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Vinge

    As at March 30, 2020

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    1. Good Practice Guidance – giving high-level consideration;
    2. An Action Point Checklist drilling down into the detail; and
    3. Answers to Key Questions facing employers in Sweden.

    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 Vinge and is published with their kind permission.  With thanks to:

    Vinge  |  Åsa Gotthardsson  |  asa.gotthardsson@vinge.se  |  https://www.vinge.se/en

     

    Good Practice

    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.

    1. Review

    • 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).

    2. Communicate

    • 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”.

    3. Update 

    • 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?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • 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.

     

    Country Overview

    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 so far as reasonably practicable the workplace health and safety of employees. This includes an obligation to continually conduct risk assessments regarding the spread of the virus in the workplace. Adequate measures can, for example, consist of frequent disinfection of the workplace and conducting online meetings instead of meeting physically. The employer’s work environment responsibility is regulated by the Swedish work environment legislation and by regulations issued by the Swedish Work Environment Authority;
    • Complying with obligations under the contract of employment and applicable labor legislation (e.g., continuing to pay wages and other benefits); and
    • Complying with applicable data protection legislation.

    An employer may also wish to review its existing insurance policies, including medical insurance, evacuation cover and business interruption.

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation in Sweden on an employer to specifically have a workplace COVID-19 response plan. However, all employers in Sweden are required to, so far as reasonably practicable, ensure the safety and health at work of all their employees. As part of that, and to comply with the requirement to make adequate and updated risk assessments, the employer could develop a plan assessing the risks, and dealing with workplace health and safety issues, associated with COVID-19.

    We recommend that employers prepare a detailed plan (if one is not already in place) and implement it. The more detailed the plan, the better prepared an employer will be to cope with any COVID-19 outbreak. A plan should deal with preparations to prevent an outbreak, what happens during the outbreak, and the steps to be taken after the outbreak. Both workplace health and safety issues, and business continuity issues should be covered.

    The plan may be part of and/or a refinement of a broader plan already developed.

    3. What should a workplace COVID-19 response plan cover?

    When preparing a plan that deals with preparations for and actions during a possible outbreak, the employer shall examine the work environment conditions and the possible risks related to COVID-19 in the organization (such as the risk of being exposed to the virus) and continually make updated assessments. The employer shall further assess what measures need to be taken to reduce the risks and must follow up whether these measures did reduce the risks or if other measures should be taken to ensure a healthy work environment.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes. If an employee is infected with COVID-19 and keeping the employee away from the workplace is reasonably necessary to protect the health and safety of other employees, then the employer may direct the employee not to attend the workplace. The employer can also, based on its managerial prerogatives to lead and manage its business operations and regardless of whether the employee is infected with COVID-19, direct employees to go home or stay at home. If possible, considering the employee’s tasks, the employer can direct the employee to work from home. Provided that the employee is not incapacitated to work, the employer must continue to comply with its obligations under the contract of employment (e.g., to pay wages).

    5. Can I direct an employee to see a doctor?

    An employer cannot force an employee to see a doctor. However, in certain situations, there may be consequences for an employee who cannot provide a sufficient doctor’s certificate. An employer can ask an employee to provide a doctor’s certificate in order to ensure that the employee’s absence is permissible and if, and to what extent, the ability to work is reduced. Further, an employer can request a doctor’s certificate in order to pay out sick pay to the employee, as explained in more detail below. If the employee were to provide a certificate which may be open to question based on the circumstances or from which it is not possible to understand in what way the work ability is reduced, the employer can require the employee to see the occupational health care for better supporting documentation. Failure to do so may result in the employer claiming that the employee’s absence is not permissible and/or not paying out sick pay.

    Normally, an employee must provide the employer with a doctor’s certificate after the seventh day of sick leave in order to continue to receive sick pay. The employer is obliged to pay sick pay during the first two-week period of each period of sick leave, amounting to at least 80% of the employee’s salary (except for a statutory deduction), after which the social insurance scheme would provide statutory sickness benefits. However, due to the COVID-19 outbreak, the Swedish government has issued a proposal according to which the requirement for a doctor’s certificate after the seventh day of sick leave will be temporary abolished. It has further been proposed that the state will temporarily cover all employers’ costs relating to sick pay from April 1 until May 31, 2020. The proposal is expected to be passed by the parliament on April 2, 2020.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes. The contract of employment will continue during a COVID-19 outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak.

    However, the Swedish government has issued a proposal (expected to be passed by the parliament on April 2, 2020) according to which an employer may, depending on the circumstances, seek support from the state in conjunction with so-called short-time working as an alternative to termination of employment where business has slowed down. Short-time working means that employees temporarily reduce their working hours to some extent and their salary to a smaller extent, and that the state compensates the employer for up to half of the salary costs. This relates to the situation where an employer suffers from temporary and serious financial difficulties which could not have reasonably been foreseen or avoided through other available measures. The employer would need to be considered competitive from a long-term perspective in order for support to be approved, meaning that the employer’s difficulties should only be temporary and transitory. It is up to the employer to show that it is likely that the preconditions governing support are fulfilled. The rules are different depending on whether the employer is bound by a collective bargaining agreement (“CBA”). For employers not bound by a CBA, at least 70% of the employees at an operational unit must have entered into individual agreements with the employer regarding participation in the short-time work. For employers that are bound by a CBA, there must be a central as well as a local CBA regarding short-time work in place.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    It depends, but it is possible. As to whether an employer can send an employee to work in a different office, that would depend on the circumstances, including, for example, whether the contract of employment provides that the employee is entitled to work at a particular location, the extent of the travel required and the inconvenience suffered by changing the work location. For example, it may not be permissible to change an employee’s workplace from Sweden to a place overseas when the employee’s duties do not usually include travel.

    8. Can I direct my employees to report suspected cases of COVID-19?

    Information concerning an employee’s health is considered to be sensitive personal data and the Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (General Data Protection Regulation) contains a general prohibition against the processing of such data. It may however, depending on the circumstances, be processed in order for the employer to be able to fulfil its obligations under Swedish labor law, such as the obligation to ensure a safe working environment at the workplace. Thus, in our view, it would be lawful and reasonable to ask employees to report if they have COVID-19 in the event of a COVID-19 outbreak. It is important to ensure that such sensitive data is only processed to the extent necessary.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    It depends, but it is possible. As a starting point, the employer decides from where and in what manner the work shall be conducted. If an employee does not attend work due to concerns related to COVID-19 and the employer has not approved of the absence, it will, as a general rule, be regarded as a breach of the contract of employment. An employee can only lawfully refuse to attend work if they fear immediate and serious consequences for their health and safety by doing so.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    Our understanding is that screening in this context relates to, for example, checking an employee’s or customer’s temperature. If this entails only checking the temperature without registering any personal data as a result of the screening, i.e., it will only mean that the individual is either let in to the premises or refused entry, this may be permissible. However, undertaking screening which entails registration of personal data will generally constitute a significant violation of privacy and the processing of data arising from the screening will, as a general rule, be prohibited in accordance with what has been stated under question 8 above regarding sensitive personal data. As mentioned above, sensitive personal data may, depending on the circumstances, be processed in order for the employer to be able to fulfil its obligations under Swedish labor law, such as the obligation to ensure a safe working environment at the workplace.

    As regards customers, it may, however, be possible to rely on the ability to process sensitive personal data based on the individual’s consent. However, it is generally not possible to rely on consent in an employment relationship since there is an imbalance of power between the employer and the employee and the employee may feel under pressure to give their consent.

    CONTACT:  Vinge  |  Åsa Gotthardsson  |  asa.gotthardsson@vinge.se  |  https://www.vinge.se/en

     

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    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 work from home.
    • Explore the possibility of seeking support from the state in conjunction with so-called short-time working as an alternative to termination of employment where business has slowed down. This has been described in further detail in the Country Overview section above.

    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.

     

    This publication by Vinge provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.