How should employers deal with workplace related issues caused by the COVID-19 outbreak

The COVID-19 outbreak has evolved rapidly and raises many concerns and practical issues related to the workplace. In this article we will discuss some important issues that employers are facing in relation to the COVID-19 outbreak, such as what kind of control measures employers can take and which rules apply regarding temporary lay-offs, payment of sick pay and absence due to COVID-19.

The government has changed the regulations for i.a. temporary layoffs, sick pay and absence caused by or related to COVID-19, with a view to reducing costs for companies affected by the virus outbreak. Below is an overview of the most important temporary changes.

Notice of temporary lay-off:

  • As a main rule, employees shall be given a 14 days’ written notice by the employer before temporary lay-offs can be initiated.
  • However, if lay-offs are necessary due to unforeseen events, a 2 days’ written notice can be sufficient. A decline in the demand for the company’s services, and/or disruptions in production due to the COVID-19 outbreak can provide a basis for applying the reduced notice period. This requires a closer assessment and depends on the severity of the company’s situation.

Temporary lay-off – the employer’s mandatory salary:

  • Pursuant to the new regulations, the employer’s obligation to pay an employee’s salary after the temporary lay-off has entered into force, is 2 working days (reduced from the usual 15). This is usually referred to as “the employer’s period”.
  • It has been decided to remove the three days’ waiting period between the employer’s period and when the employee is entitled to receive benefits from the government. Hence, the employees will be entitled to benefits from the government as of day one after the employer’s period is over.
  • The government will cover the employees’ salary for the following 18 days, up to 6G (G = the national insurance basic amount, 1G is approximately 100 000 NOK). After this 20-day period, the laid off employees will receive unemployment benefits (Norwegian: “dagpenger”) from the Norwegian National Insurance Scheme (“NAV”), provided that they satisfy the conditions for such benefits.

The unemployment benefit (Norwegian: “dagpenger”):

  • The minimum reduction of working hours required to qualify for unemployment benefits has been reduced from 50 to 40 percent (in the event that the employees are temporarily laid-off from e.g. 50 percent of their position)
  • Employees with an income up to 3G, will be entitled to higher unemployment benefits than usual, as they will be assured a minimum income of 80 % of their total salary, after day 20 of the lay-off period.
  • Employees with an income between 3G and 6G will receive 62,4% of their income in unemployment benefit. Income that exceeds 6G will not be compensated.
  • The threshold for minimum income to qualify for unemployment benefit has been decreased to 0,75G, from earlier 1,5G.

Sick pay and care benefit:

  • Employees that need to stay home to care for children due to the COVID-19 outbreak are entitled to care benefits (Norwegian: “omsorgspenger”). The number of care benefit days has been doubled – from 10 to 20 days per parent.
  • The employer period for care benefits has been reduced from 16 to 3 days. For the remaining days the employee will receive payment from NAV.
  • In terms of sick pay related to the COVID-19 outbreak, the employer period has also been reduced from 16 to 3 days. After the 3-day period the employee will receive sick pay from NAV.

How to carry out a temporary lay-off?

If a company experiences a temporary lack in need of staff due to the COVID-19 outbreak, a solution might be to temporarily lay-off employees. The ordinary conditions for temporary lay-off still apply in these circumstances.

  1. The necessity of lay-offs: The need for layoffs must be based on reasonable grounds. When evaluating the necessity of layoffs, one must consider the potential impact and consequences the COVID-19 outbreak will have on the company. Also, the selection of whom to layoff has to be objectively justified. The selection criteria should be based on objective criteria, such as the ability to carry out remaining work tasks, seniority, weighty social conditions etc. The criteria should be discussed with the employees’ representative.
  2. Mandate: A board resolution is required which gives the administration a mandate to carry out the lay-offs.
  3. Discussions with an employee representative: You should discuss both the necessity for layoffs, and how to carry out the process, with the company’s employee representative. A protocol from these discussions should be signed by both parties.
  4. Written notice/notice period: In the case of layoffs, an employee will be entitled to receive a notice of layoff, and the employer will have to pay salary during this notice period in addition to the employer`s mandatory salary period. A layoff notice is generally issued with a 14-days’ notice. There is however a possibility to use a 2-days’ notice period if the situation is critical. We will need more information to be able to give a concrete answer as to whether a 14-days’ notice period or a 2-days’ notice period will apply.
  5. The employer’s mandatory salary period: After the expiry of the notice period, the employer is obliged to pay salary for the following 2 days (the employer period).
  6. The duration of the lay-offs: Layoffs are supposed to be a temporary measure. NAV will pay unemployment benefits to the employee for a maximum of 26 weeks after the expiry of the employer period.
  7. When the temporary lay-off concerns 10 employees or more, NAV will have to be notified.

When the temporary lay-off concerns 10 employees or more, special rules for mass lay-offs apply.

Other practical issues regarding COVID-19 and the workplace

Can the employer instruct an employee to go home and self-isolate?

  • The employer can ask an employee to go home and self-isolate (for 14 days or until a possible negative test result is obtained by the employee), if the employee is either confirmed infected by the COVID-19 virus, or such infection is suspected (e.g. if the employee shows symptoms, or has been in direct contact with an individual who is infected).
  • If an employee has in fact tested positive for COVID-19, the employee will be entitled to sickness benefits. The employer will then have to pay sick pay (salary) for the first 3 days. After this period, sickness benefits will be paid by NAV.
  • The employer can also ask an employee to stay home from work, simply as a measure to reduce the spread of the COVID-19 virus, without the employee actually being infected or possibly infected.
  • An employee who is instructed to stay in home quarantine (and is not sick), will be entitled to full pay from the employer during this quarantine period.
  • The employer can instruct the employee to work from home if this is possible, based on available home office solutions, the type of work etc.

What can the employer do if an employee chooses to self-isolate?

  • There may be some instances where an employee chooses to self-quarantine without meeting the self-quarantine guidance, for instance due to fear of getting infected themselves.
  • Fear of infection does not qualify for sick pay, and it is also not a legitimate reason for absence from work.
  • Furthermore, the employee cannot demand to work from home. However, working from home should be considered if a home office solution is available, taken into account the employee’s personal situation.