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Frequently asked questions on employment matters in relation to covid-19
For "New legislation on temporary part-time furloughs of employees", please see below this section
1. General

1.1 What health and safety duties do we have as an employer?
There are no specific rules or regulations concerning covid-19 when it comes to an employer’s health and safety duties. The spread of covid-19, however, does trigger a number of already existing work environment obligations as the employer is ultimately responsible for employees’ health and safety at the work place. These should be handled in accordance with systematic work environment management standards.

As some circumstances surrounding covid-19 remain unknown, the employer is primarily expected to keep up to date with risks, recommendations from the responsible authorities and continuously make risk assessments of how the business may be affected.

1.2 Are there any new employment legislation in light of the crisis?
In order to help slow the spread of covid-19 and to mitigate the financial impact of the virus outbreak, the Swedish Government has presented a number of proposals. The most important ones from an employment law perspective are:
  • The qualifying day for sick pay will be discontinued between 11 March and 11 May, meaning that the state will provide sick pay for the employee’s first day of sick leave which normally is unpaid.
  • The state will temporarily assume responsibility for employer’s entire costs for sick pay during April and May 2020.
  • The ordinary requirement that employees present a medical certificate from the eighth calendar day of sick leave will be temporarily suspended, meaning that employees will be able to remain on paid sick leave for 14 days without presenting such a certificate.
The Government’s earlier proposal on part-time furlough rules will have an increased scope and will be pushed forward. As part of a crisis package presented on 16 March 2020, the Government suggested that the date when the new rules come into force be moved from 1 August 2020 to 7 April 2020 and that the new rules should apply retroactively from 16 March 2020. The package also significantly increases the state’s subsidy level for support paid out during 2020 (see further under heading

1.3. Can we temporary lay off employees if demand decreases?
There is no temporary lay-off concept as such under Swedish law. However, there are two alternatives to temporary lay-offs, with similar effect.
  • On March 16, the Swedish Government introduced new emergency part-time furlough rules that will allow an employer to temporarily shorten its employees’ working hours up to 60 per cent, while the state covers 75 per cent of the employees’ furlough salary (based on a monthly salary of up to SEK 44,000). This way, an employer may be able to reduce its personnel costs with more than 50 per cent. The new rules will apply through the end of 2020. If the employer is covered by a collective bargaining agreement, the furlough must be approved by the relevant trade union at the national level and regulated in detail at local level (or , if there are no local unions, at national level). If no collective bargaining agreement applies, the furloughed employees must approve the furlough and at least 70 per cent of the employees at the relevant workplace need to be subject to the furlough.
  • An employer can also reduce its work force and personnel costs by terminating employees according to the regular rules on termination due to redundancy. That includes having to consult with the trade unions, notifying the Swedish Public Employment Agency if five employees or more are laid off, and providing statutory (or contractual, if longer) notice periods to the employees. During the notice period, the employees are entitled to full salary and benefits even if there is no work to be carried out. The employees will be permanently terminated, but will have a preferential right to re-employment if the employer would decide to start hiring during the notice period and nine months thereafter.
1.4 Can we reduce working hours if demand decreases?
Only if the individual employment agreement and/or applicable collective bargaining agreement allow you to do this. Changes in working hours may also need to be negotiated with the trade unions. In general an employer cannot unilaterally decrease an employee’s working hours.

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2. Working from home and temporary shutdown

2.1 Do we have to allow and/or encourage employees to work from home?
Responsible authorities recommend that employees in Stockholm that can work from home do so, although there is no legal obligation as of yet. From a work environment perspective it may, in line with this recommendation, be advisable to allow and encourage employees in Stockholm to work remotely from home to the extent possible and suitable for your business.

There are currently no such recommendations for other parts of the country, but there may nevertheless be good reasons to allow employees to do so if requested, see further under heading 3.2 and 4.2.
2.2 Are we at any point required to close down the work place?
At the moment there are no instructions from the responsible authorities that work places must be shut down (with exception of upper secondary schools and universities). We recommend that you follow the instructions by the authorities since the situation constantly changes.

3. Other health and safety measures

3.1 Are we allowed to carry out or require health examinations on employees?
Within the framework of the systematic work environment management, an employer is obliged to ensure that the workplace is safe and prevent risks of ill health. In addition, the Swedish Work Environment Authority has stipulated that, if necessary, the employer must offer medical preventive measures, examination, vaccinations and similar to employees that may have been exposed to or is at risk of being exposed to infectious substances at work. However, general health examinations of all employees is an intrusion on the employees’ personal privacy and such a measure must therefore be proportionate to the risk of employees being infected at the workplace.

It is currently uncertain exactly how widespread the coronavirus is in Sweden. As it increases, however, it is possible that an employer needs to take additional preventive measures - especially if there are many employees within a risk group at the work place or the work includes contact with people within risk groups. Even in these cases, however, there must be good reasons for examining employees' health status, e.g. that those being tested have visited risk areas, have infected persons in their vicinity or similar.

The employer has to negotiate the preventive measures with the trade unions to which the employer is bound by a collective bargaining agreement prior to the introduction of e.g. health examinations.
Information regarding employees’ health is considered sensitive personal data and there are certain personal data regulations that must be adhered to, see further under heading 3.3.

3.2 If and when do we have a right/obligation to send home employees?
At the moment there are no instructions from the Swedish Government that work places must be shut down (however it is recommended that employees in Stockholm that can work from home do so). Accordingly, there is no obligation for the employer to send employees home. However, the employer should continuously review the work environment and whether it is suitable to instead have the employees or some of the employees working from home or elsewhere.

The employer has a right to unilaterally decide that the employees should work from home. This falls within the scope of the employer’s managerial prerogative, although the employer will be obligated to facilitate for such work and still has a responsibility for the employees’ work environment. If the employer is bound by a collective bargaining agreement, we recommend that the trade unions are informed about the employer’s decision for employees to work from home and the conditions for such work.

As the employer is obliged to ensure that the workplace is safe and prevent risks of ill health, an employee that is sick should be encouraged to leave the work place and apply for sick pay.

3.3 Do employees have a right to be notified if a colleague has contracted the coronavirus?
Information about health is subject to strict processing conditions. Accordingly, the employer should be careful before processing and forwarding information about an employee being infected by covid-19. However, the employer also has a responsibility to ensure that the workplace is safe and prevent risks of ill health. Accordingly, the employer may be considered to have obligations imposed by law in relation to the employment to process such sensitive personal data. If the employer makes the assessment that other employees need to be informed about an employee being diagnosed with covid-19, the employer should, to the extent possible, try to provide the information without naming the employee and limit the scope of personnel that have access to the information.

The recommended practice could be to, in the first instance, ask the individual to consent to colleagues (which he/she has been in contact with) being informed. In the event that the employee does not give such consent, the employer could probably rely on the processing being necessary for the purposes of obligations imposed by law in relation to the employment.

As the information regarding health is subject to strict processing conditions, the employer should continuously assess the need to keep the gathered information.

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640x640transp 4. Pay and leave

4.1 Do we have to pay employees who are quarantined due to coronavirus and/or has coronavirus symptoms, without being actually sick?
Employees that are sick should be home and apply for sick pay. As explained above, the Swedish Government has decided, as a temporary measure, that the state shall take over the sick pay responsibility for April and May. Accordingly, the employer does not have to pay employees that are home sick during this period. The legal requirement to present a medical certificate to the employer during the sick pay period has also been temporarily removed.
If the employee is not sick but may be infected by the coronavirus, the employee should be home and apply for quarantine allowance (Sw: smittbärarpenning). The allowance is paid by the state. If the employee receives quarantine allowance, the employee will not receive pay from the employer. However, if the employee can
perform work from home, the employee will not receive quarantine allowance and should instead receive pay from the employer.
If the quarantine has been imposed by the employer without the employee being entitled to quarantine allowance, the employee should as a main rule work from home and receive pay. If the employee has tasks that cannot be performed from home, the employee will normally be entitled to pay without being able to do any work.

4.2 Are employees who refuse to come into work just because they are worried to be sick, entitled to leave? If so, are they entitled to pay?
The employer has no general obligation to allow employees to work from home. However, and as explained above, the employer is obliged to ensure that the workplace is safe and prevent risks of ill health. Accordingly, if the employee is within a risk group, the employer should, if possible, facilitate for the employee to work from home.

If it is not possible for the employee to work from home (or if the employer does not want to give such approval) and the workplace is open as usual, an employee that still decides to stay home will not receive pay. If the employee is not within a risk group, it would most likely be viewed as unlawful absence. However, if possible, the employee and the employer could agree that the employee should take out vacation days, parental leave (where relevant) or unpaid leave of absence.

4.3 Are employees who need to be at home and take care of their children because the preschool / school is closed, entitled to leave? If so, are they entitled to pay?

As a main rule, the employer will not be able to take any measures against employees that cannot come into work due to fact that preschools or schools are closed (it would be considered urgent family reasons). However, an assessment would need to be made depending on the child’s age and needs. Accordingly, the employee will be entitled to leave but he/she will, as a main rule, not receive any pay from the employer. If possible, the employee and the employer can agree that the employee should work from home (with pay), or take out vacation days, parental leave or unpaid leave of absence.

At the moment, there is no state support for parents that has to be home with their child because the preschool or school is closed, unless the child is sick or infected.

4.4 Do we have to pay employees if we ask them not to attend work and/or close the workplace?
Generally the employer cannot withhold salary only because the workplace is closed or the employee does not need to attend work for any other reason. For quarantine that has been imposed by the employer, see heading 4.1.

5. Travel etc.

5.1 Can we stop employees from taking public transport to work?
If the employer is concerned about employees using public transportation, the employer can encourage the employees to use other means of transportation to work, such as walking, cycling or driving. As regards those employees that cannot avoid public transportation, the employer could, if possible, offer the employees to work from home or taxi transportation.

However, as long as the Government has not decided to close down the public transportation or restrict it for certain purposes due to the coronavirus it would most likely not be possible for the employer to take any legal measures towards employees that use the public transportation against the employer’s policies.

5.2 Can we prevent employees from traveling and/or attending crowded events in their free time?
As a main rule, the employer may not prohibit the employees from activities in their free time.

However, a number of employers have introduced policies that encourage employees to limit private trips to high-risk areas and if such trips take place, that the employees must work from home for 14 days after returning home. Such measures usually fall within the employer’s managerial prerogative.

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640x640transp So far it is fairly straightforward from a legal point of view. But if the employee has tasks that cannot be performed from home - is the employee entitled to pay without being able to do any work? The short, somewhat simplified, answer is yes if the employee traveled to an area that the Swedish Ministry of Foreign Affairs (Sw: Utrikesdepartementet) has not advised against and no if the employee, despite the knowledge that he or she is not allowed to stay in the workplace for 14 days after the trip, has chosen to travel to an area that the Ministry of Foreign Affairs has advised against. In the latter case, the employee has himself/herself chosen not to be able to perform any work for the employer and therefore is not entitled to any pay. At the moment, the Ministry of Foreign Affairs advises against any non-essential travel to all countries.

As regards social events, it is currently prohibited in Sweden to have events for 500 persons or more (i.e. concerts, theater shows, sport events etc.). If employers are 
concerned that employees, despite government regulations, attend events with more than 500 persons, can issue a policy that it is not permitted to attend such events. If employees do not follow the regulations from the government and guidelines of the employer, the employer may be able to take measures similar to those regarding private travels, see above. As regards events with less than 500 persons, there is currently no governmental prohibition and it is probably not possible to have any binding stricter policies in this regard. However, the employer could of course encourage the employees to, to the extent possible, avoid crowded areas where there is an increased risk of being infected.

5.3 Do we have to pay employees who are stuck abroad and are unable to work?
It depends on whether the employee got stuck during a business trip or a private trip. In the latter case, the employer has no obligation to pay the employee if it is not possible for the employee to work remotely. Employees that have got stuck on a business trip are normally entitled to salary.
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New legislation on temporary part-time furloughs 
of employees
1. General information on the new legislation
On March 16, 2020, the Swedish Government announced that it will introduce new rules regarding temporary part-time furloughs of employees. The new rules will formally enter into force on April 7, 2020, but will be given retroactive effect as of March 16, 2020, and will remain in force for the rest of 2020. The proposal is based on a bill that was presented earlier this spring, and constitutes an expansion in the level of financial assistance that the Swedish Government may provide to employers who need to temporarily decrease their workforce in times of economic crisis.

Under the new temporary part-time furlough rules, an employee’s working time and salary may be decreased, while the Government will cover 75% of the costs for such furlough. In contrast, under the previously proposed rules, the costs were equally split between the employer, the employee and the government and this will probably be the position when the temporary part-time furlough rules expire. As a result of the temporary rules, an employer will be able to cut its employment costs in half (without laying off any staff), while the employee will continue to receive more than 90% of his/her salary.

Below, we summarize the new rules that were presented by the Government on March 16, 2020. However, as the legislative bill has not yet been presented, there are some uncertainties as to the exact text of the anticipated law. The description below is based on the earlier bill regarding temporary furloughs, but is updated with the information presented by the Government on March 16, 2020.

2. Which employers are covered by the new rules?
Subject to the restrictions below, the proposed legislation covers all employers that are either legal entities, or natural persons who are carrying out economic activities.

However, the law will not apply to national, regional, or municipal governmental entities. Similarly, it will not apply to legal entities over which such governmental entities have direct or indirect control or a decisive influence, unless the employer’s operations are classified as business operations. Moreover, the law will not provide financial support to employers whose operations are primarily financed by public funds, and whose services the government is statutorily mandated to provide to the public.

Financial support may be provided to an employer after an approval from the Swedish Agency for Economic and Regional Growth (Sw: Tillväxtverket). Such an approval may only be granted if:
  • the employer is experiencing temporary and serious financial difficulties;
  • the financial difficulties have been caused by circumstances beyond the employer's control;
  • the financial difficulties could not reasonably have been avoided; and
  • the employer has used other available measures to reduce the labor costs (excluding termination of permanent employments).
Financial support will not be approved for employers who at the time of application are:
  • obliged to prepare a balance sheet for liquidated purposes pursuant to Chapter 25. § 13 of the Swedish Companies Act (Sw: Aktiebolagslag (2005: 551)),
  • subject to company reorganisation (Sw. företagsrekonstruktion) as described in the Swedish Company Reorganisation Act (Sw: Lag (1996: 764) om företagsrekonstruktion); or
  • insolvent.
An assessment of whether support can be provided will be made by the Swedish Agency for Economic and Regional Growth. An employer who has received an approval can thereafter apply for financial support.

3. Conditions for furloughing employees under the new rules
To receive financial assistance under the new rules, an employer must submit an application for preliminary financial support to the Swedish Agency for Economic and Regional Growth within two months of the end of the relevant “support month” (i.e. the month which the employer is seeking financial support for). Unless such an application is made in time, no financial support will be paid out. The first month of financial support during the support period must take place no later than 45 days after the approval (support period is the period when the financial support for part-time furloughs is to be provided). Otherwise, financial support may not be provided.

Based on the information provided on March 16, 2020, employers may obtain the enhanced financial support through the end of 2020.

As a general rule, any applicable national and local collective bargaining agreement (“CBA”) must allow to the temporary furloughs in question, and the relevant trade union(s) must thus agree to the furloughs and the details thereof before they can be implemented.

Employers who are not covered by any collective bargaining agreement(s) must enter into a written agreement with the relevant employees regarding the temporary furlough, before it can be executed. In addition, at least 70% of the employees in any given business unit must be furloughed during the relevant support month. A business unit is defined as a geographical location, such as an office or a factory.

4. Which employees are covered by the new rules?
The proposed new rules are not restricted to certain employees or employment categories. However, in practice, all covered employees must have been employed for at least three months in order to be covered by the new rules.

5. Levels of decreased working hours and pay
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The levels above are fixed and may not be contractually modified, neither with individual employees nor with national or local trade unions.

If the employer is not covered by any CBA, all furloughed employees within the relevant business unit shall be subject to the same level of decreased working hours and pay (level 1, 2 or 3). If a CBA applies, the details of the temporary furlough shall be outlined in such CBA.

6. Limits to the Government’s salary coverage
Under the proposed bill, the Government will not provide any financial support to cover salary portions exceeding SEK 44,000 per month. Consequently, for any employees with salaries exceeding SEK 44,000 per month, the Government’s share of the salary cost for furloughed time will be based on a salary of SEK 44,000. The part of the (reduced) salary that exceeds SEK 44,000 per month will be fully paid by the employer.

Henric Diefke, henric.diefke@msa.se
Anders Nordström, anders.nordstrom@msa.se
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