By Act no 480 of 12 June 2009 the Danish Parliament enacted a number of amendments to the Danish Sickness Benefits Act. To employers, the following new regulations are particularly relevant:
1. Sickness absence interview (Section 7a)
A duty for the employer to conduct a sickness absence interview with the employee on sick leave is introduced. The interview must take place no later than 4 weeks after the first day of sickness and – based on a dialogue between the employee and the employer – the interview is intended to determine when the employee will be able return to work and how the employer can support this by arranging the work in the best possible way for the employee.
The employee on sick leave should be invited to the interview with a reasonable notice, and as a starting point the interview should be conducted face to face. If a meeting in person is not possible due to the employee's sickness, the interview should take place by telephone, if possible. If the employee refuses to participate in the interview, this will have no consequences for the right to claim sickness benefits, just as it will have no consequences for the employer's right to claim a refund.
The duty to conduct sickness absence interviews applies with respect to employees who commence sick leave as of 4 January 2010 or later.
2. Retention plan (Section 7b)
Employees on sick leave who are not expected to return to work within 8 weeks after the first day of sickness may request a retention plan. The retention plan, which must be in writing, should be prepared jointly by the employee and the employer, and should describe when and how the employee can return to work as soon as possible. If the employer finds that a retention plan is not necessary, he may refuse to draw up the plan. Generally, we recommend that, if the employee requests it, the employer should assist in drawing up a retention plan, as the employer's refusal to do so may be detrimental to the employer in connection with a possible subsequent dismissal of the employee.
The possibility of a retention plan applies with respect to employees who commence sick leave as of 4 January 2010 or later.
3. Fit for work certificate (section 36a)
The present "medical certificate on inability to work" is abolished and replaced by a "fit for work certificate".
The purpose of the new fit for work certificate is to evaluate the possibilities of retaining the employee in his work and to improve the employee's changes of returning to work on a full-time or part-time basis. The fit for work certificate is based on a dialogue partly between the employer and the employee and partly between the employee and his physician and consists of two parts:
The first part must be filled in jointly by the employer and the employee. The first part should describe the impact of the sickness on the employee's work, including any functional reductions of the employee, the particular job functions affected by the sickness, and whether any light duties have been introduced.
The second part is filled in by the physician who evaluates the employee's ability to work based on the first part of the certificate and a conversation with the employee. The physician should consider the employer's proposals for light duties, make his own proposals for light duties and make an estimate of the expected time of duration of the period in which the work should be adjusted, or where full-time or part-time sick leave is considered to be required.
The employee should be invited to the interview by the employer with a reasonable notice, which according to the explanatory notes to the Act is estimated to be approximately one week. As a starting point the interview should be held face to face, but it may also be held by telephone, if the sickness prevents the employee from participating in person. The employee is obliged to attend the interview and failure to participate may lead to repeal of the right to sickness benefits from the employer.
The employer may request the fit for work certificate at any time during the course of the employee's sickness and it may be requested both in case of brief, repeated, and long periods of sick leave. The employee should be given a reasonable period within which the fit for work certificate should be received by the employer. According to the explanatory notes to the Act a reasonable period is considered to be approximately 14 days.
The fit for work certificate is to be given on a form approved by the Danish National Labour Market Authority, and is to be paid for by the employer.
The provision on the employer's obligation to use the fit for work certificate enters into force on 5 October 2009.
The employer should be aware that the new rules do not affect the right to request a written solemn statement according to section 36 (2) of the Danish Sickness Benefits Act. Also, employers are still entitled to request a certificate of duration on the expected duration of the employee's sickness, cf. section 5(4) of the Danish Salaried Employees Act.
Furthermore, it is stated in the explanatory notes to the Act that if nothing else has been agreed, the employer is still entitled to request a medical certificate in accordance with the provisions of employment law, as the employer may request documentation of the employee's lawful absence. As it is assumed that the employer has a non-statutory right to request a medical certificate and considering the fact that the new provisions of the Danish Sickness Benefits Act do not aim at amending current employment law regulation, it is our assessment that an employer – with due consideration to the individual facts – will still be entitled to request a medical certificate on the 4th day of sickness. However, the employer should be aware that the medical certificate cannot replace the fit for work certificate.
4. Sickness benefits upon termination of employment (section 31)
So far the employer has been obliged to pay sickness benefits to the employee during the statutory employer period (21 days counted from the first day of sickness) irrespective of whether the employee was employed or resigned from his position during this period.
However, according to the new provision the employer's obligation to pay sickness benefits lapses when the employment relationship ceases. This will have a bearing on cases where an employee reports in sick in connection with dismissal, as the employer will no longer have to pay sickness benefits exceeding the notice period.
The provision applies with respect to employment relationships where the employee's first day of sickness is 6 July 2009 or later.
5. Other relevant legislation in connection with the Danish Sickness Benefits Act
In applying the new provisions of the Danish Sickness Benefits Act the employer should be aware of other legislation linked to the employee's sick leave which determines the legal framework of the employer's dialogue with the employee on sick leave, the municipality and the physician, respectively. Accordingly, the Danish Health Information Act sets the limits of which questions the employer may ask the employee on sick leave, just as the Danish Data Protection Act sets the limits as to which health information may be processed and disclosed to the municipality and the physician.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
