1. Emergency Measures
This spring, Norwegians experienced a time when their government enacted new regulations regarding furloughs and sickness benefits in a manner that was remarkable and swift. Due to both the COVID-19 pandemic and also the oil crisis, Norway is facing a period in which permanent redundancies and permanent dismissals are imminent, and will likely involve court cases specifically related to the selection of which employees will be redundant and which employees will be entitled to stay with the companies. As long as COVID-19 continues to impact our everyday lives, employment law will be marked by issues of social benefits, employers’ contributions and economic support for companies struggling to survive.
All indications point to the fact that Norwegian employment law will be required to consider alternative ways of performing work – enhanced digital interoperability and a renewed freedom to work from home. It is now quite clear that the experience of temporarily working from home will likely transform into more permanent solutions. The employer’s responsibilities related to HSE at the home office and working time outside the office is still uncertain in today’s evolving legal landscape. There is a need to improve regulations governing both the employer’s responsibilities, and also the right to control employees’ workspace outside the office.
Decrees, orders or guidelines in effect and pertaining to reopening facilities.
As a result of the COVID-19 epidemic, diverse decrees and guidelines have been put into effect. The Act on Infection Control (LOV-1994-08-05-55) provides a legal basis for the government establish rules regarding infection control. The most important regulation adopted thus far as a result of the COVID-19 crisis, is the Directive on infection control measures due to COVID-19 (FOR-2020-03-27-470), which regulates issues such as quarantine, isolation, and various prohibitions against public events, the effects of which impact working life as such, since the Directive is applicable to any person or business physically located in Norway. Further, the legislator adopted the Temporary Act as a means to regulate and control the consequences of COVID-19 (called the “Corona-Act”). This law has, during the course of this current crisis, provided a legal basis for the government to rapidly adopt regulations without having to go through the legislator. However, this law was just recently repealed, on 27 May 2020.
In addition to the particular COVID-19 legislative measures with a provisional purpose, the ordinary rules in the Working Environment Act and the Act on Temporary layoffs still apply – together regulating the rights and duties of working life. The government has recently adopted a proposal that would make some minor changes to the rules on temporary layoffs, with effect as from 1 September 2020.
When it comes to reopening workplaces, the Norwegian Labour Inspection Authority has published a guide for employers, in English, at: https://arbeidstilsynet.no/en/safety-and-health/corona-virus-information-for-workers-and-employers/
In addition, the Labour Inspection Authority has issued specific guidelines on reopening offices (available in Norwegian only) at: https://arbeidstilsynet.no/tema/utforming-av-arbeidsplassen/rad-ved-tilbakeforing-til-arbeid-for-kontorarbeidsplasser/
The Institute of Public Health has released an English version of the workplace guidelines at: https://www.fhi.no/en/op/novel-coronavirus-facts-advice/advice-and-information-to-other-sectors-and-occupational-groups/workplace-advice/
Optimal approach to keep track of the latest updates.
The government has created an English language information site, where enterprises can keep track of the latest updates regarding government measures and proposals of all types: https://www.regjeringen.no/en/topics/koronavirus-covid-19/id2692388/
In addition, the Norwegian Institute of Public Health has launched a similar website with important information on COVID-19 is published daily at: https://www.fhi.no/en/id/infectious-diseases/coronavirus/
2. State Aid
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
Various measures of state aid have been implemented in order to provide assistance to employers and enterprises during this unprecedented global crisis (e.g. postponing deadlines for payment of diverse company taxes, in addition to providing state guarantees, compensation packages and loans to specific sectors on a vast scale). Information about these national measures is available online at: https://www.regjeringen.no/no/tema/Koronasituasjonen/nasjonale-tiltak/id2693684/?expand=factbox2693813
With working life specifically in mind, the legislator has adopted amendments to the Act on Pay during Temporary Lay Offs. The employer’s payroll during the temporary layoff period has been reduced from the original 15 working days to 2 working days (as of June 2020). Following this lay off period, employees are entitled to 18 days of full salary up to six times the basic (national insurance) amount paid by the National Welfare Administration. As of day 21, the employee is entitled to unemployment benefits, which have also increased slightly during this period. In summation, these amendments have removed a major part of the economic burden imposed on employers and employees as it relates to temporary layoffs. These changes have provided employers with the incentive to carry out temporary layoffs instead of proceeding with redundancies, which in turns has been effective in providing additional employment protections during the COVID-19 pandemic.
3. Health and Safety Measures
Requirements mandated by law or any official guidance.
The Act on Infection Control (LOV-1994-08-05-55), along with the Regulation on Infection Control Measures (FOR-2020-03-27-470) and the Regulation on Performing Work (FOR-2011-12-06-1357) set out the many health and safety measures applicable to employers. These regulations are relevant for all enterprises located in Norway, see also: https://www.fhi.no/en/op/novel-coronavirus-facts-advice/advice-and-information-to-other-sectors-and-occupational-groups/workplace-advice/
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
We are not aware of any measures typically implemented by employers other than the recommendations from the Government and health authorities detailed above. Employers are, pursuant to mandatory law, obliged to consider the situational risks inherent in the workplace. The risk of infection will vary from one enterprise to another, and employers must carry out specific concrete evaluations.
Policies and procedures for telework once the business reopens.
The Government has, during the COVID-19 pandemic, encouraged employers to arrange for their employees to work remotely, in particular, for employees who use and rely on public transport. In early June, the Government encouraged employers to normalise the working situation, thus recalling their employees back to the workplace, in cases where this is the operational standard. In practice, many employers have followed the Government’s advice on recalling employees. However, many employers will likely to allow employees, who prefer a more flexible arrangement, to continue to work from home. It should be noted that there is a regulation on home office, (FOR-2002-07-05-715), which sets forth the rules regarding a separate written agreement (in addition to the employment agreement) and working environment. The regulation does not apply to situations to brief or casual work from home, but applies instead to more permanent arrangements.
5. Managing COVID-19-Related Employee Issues
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
As a general comment, many employers have been able to manage a host of issues through flexible arrangements (home office, if possible) and working hours. As a result of this flexibility, employees in quarantine, with children at home, or have otherwise been affected by COVID-19, have managed to perform their work relatively close to normal. Employees who have fallen ill from the COVID-19 virus, benefit from the rights afforded to them pursuant to the ordinary rules on sickness leave and benefits as set out in the relevant legislation. The requirement of quarantine has, however, challenged the interpretation of the rules. Hence, the authorities have provided guidance resulting in some practical advice for employers. Firstly, the authorities have advised that employees who are in a group not at risk of being sick, may be entitled to sickness benefits in certain circumstances. Secondly, employees quarantined by the health authorities, may be entitled to sickness benefits if certain conditions are met. The authorities have, however, encouraged employers to enable employees to work from home, if possible.
A large part of the workforce has been forced to contend with the closing of schools and daycare centres across the country. Employees impacted by these measures are entitled to parental leave for childcare and their rights have been somewhat extended. As of 11 May, most schools have reopened, and therefore these measures are less relevant at this time. However, schools and kindergartens have restricted their business hours as they gradually reopened, necessitating the need for greater flexibility in the workplace.
Employees who fear infection and refuse to work.
An employee who fears infection and refuses to work, albeit unnecessarily from a medical point of view, is violating his/her duty to work. This may serve as an objectively justified ground for dismissal if the violation is severe enough. The employer should in these cases provide a written warning to the employee, stating that such behavior is unacceptable. If the employee still refuses to return to work, the employer should summon the employee to a consultation meeting and consider dismissal.
Disclosure of employees who are infected.
The GDPR establishes strict limitations on the disclosure of information concerning an employee’s heath condition. Please note that exemptions from the ordinary rules applicable in such cases and have not, to date, otherwise been adopted.
6. Cost-Reduction Strategies
To what extent can employers implement the following cost-reduction strategies as a result of COVID-19, and what are the primary limitations on each?
An employer suffering from temporary lack of work tasks may have a legal basis for short-term layoffs. Temporary layoffs imply that the employee’s duty to work and right to salary is temporary suspended. An employer may carry out temporary layoffs for a maximum period of 26 weeks. The employees affected, may have the right to unemployment benefits according to the National Insurance Act.
An employer cannot impose salary reductions unilaterally. In order to carry out salary reductions, the employer is required to obtain consent from the employee, or is obliged to follow the procedures related to dismissals prescribed by law, including having a justifiable cause and carrying out consultations with the employee representatives.
Employers with a need for cost reductions, may carry out a redundancy process if certain requirements are met. A redundancy includes collective dismissals, and the employer has the burden of proof that the redundancy is necessary, and must carry out consultation meetings with the employee representatives and/or hold individual consultation meetings with those employees who will be impacted. Next, a decision should be made as to whether the dismissals are necessary, with consideration given to both the employer’s needs as well as the situation that the employees are faced with. An important limitation is that the employer shall offer other suitable vacant positions if such work is available. If a court considers that the employer had other suitable vacant positions, the dismissals will most probably be deemed invalid.
It is within the employer’s managerial prerogative to decide whether a business shall exist or not. If a decision on facility closure implies dismissals, the rules described in section c. above, will apply. It should be noted that courts are often reluctant to overrule an employer’s business assessments.
7. Best Practices
Tips, recommendations and common pitfalls.
Most employers in Norway have already settled the holiday period. Our recommendation going forward, is to carry out proper assessments on the recurring temporary layoffs, and the need for labour based on a long-term perspective. COVID-19 has significantly impacted the Norwegian economy and, as a result, employers will need to implement a cost reduction strategy. If the measures include redundancy and dismissals, the employer should begin to plan how they intend to carry out this process. Employers should further asses how the work will be organised when the employees return from holiday, including consideration of whether employees shall be permitted to work from home.