Notifiying employees to take holiday in connection with Covid-19

In certain circumstances the general rules regarding notification of holidays can be waived pursuant to the Holiday Act. Therefore, for companies experiencing acute order decline, job shortages and similar due to covid-19, it may be relevant to consider utilising the relevant provisions to notify employees that they should take a period of holiday at short notice.

Section 15 (1) of the Holiday Act prt.2, states that an employer must notify employees about a period of holiday at least 3 months before the main holiday begins and no later than 1 month before the residual holiday begins. However, it follows from section 15 (1) of the Holiday Act prt.2, that the usual notification rules can be waived in cases where “special circumstances” prevent the employer from complying with the notification rules.

According to the drafters of the Holiday Act, the term “special circumstances” is to be interpreted on a milder basis than the concept of force majeure. In principle, a departure from the notification rules must be based on a concrete assessment of whether the company’s situation as a result of covid-19 constitutes a “special circumstance”. This may be the case, for example, if the company experiences an acute order decline or a lack of work for reasons other than an order decline.

If the employee still has residual holiday earned in 2018 to take, the company will thus have the opportunity to notify the emloyee that residual holiday be taken before May 1, 2020, when a new, abbreviated holiday year begins.

If the employee has already planned a residual holiday before the end of April 2020, it is recommended to adhere to such an agreement as far as possible. If it is not possible to adhere to such an agreement, it follows from section 15 (1) of the Holiday Act prt.3, that “If significant, unforeseen operational considerations make it necessary, the employer may change the previously stipulated holiday. The employee must be compensated for any financial loss as a result of the deferral. Already started holidays cannot be interrupted ”.

The company could use this provision to alter any prior agreements on holiday transfer to the new holiday year, if it is necessary for the company that the holiday is now held in the current holiday year.

Holidays earned during the period 1 January 2019 to 31 August 2019 must be utilised in the period from May 1, 2020 to August 31, 2020. There are a total of 16.64 days of holiday to be held during the period if the employee has been employed throughout the vesting period. The possibility of derogating from the usual notification rules may also be used in relation to this holiday, if “special circumstances” necessitate this.

It should be noted that there is a special rule in section 16 (2) of the Holiday Act. prt. 1, whereby an employee who has been terminated cannot hold a main holiday during the notice period if the notice period is 3 months or less. The possibility of notifying main holidays with shortened notice in accordance with section 15 (1) of the Holiday Act prt. 2 therefore lapses in a situation where an employee is terminated with a notice of three months or less.

Holiday agreement

It follows from section 21 (1) of the Holiday Act prt.2. that section 15 (1) of the Holiday Act prt. 2 and § 16 (2) prt. 1 may be waived by agreement. Thus, among other things, there is nothing to prevent the employer and the employee agreeing that the employee takes leave during the notice period, even if the notice period is less than three months.

Similarly, it can be agreed between the company and the employee to depart to from the principle that the main holiday of 15 days (3 weeks) must be taken consecutively. If for example, it is more advantageous for the sake of operations that some of the holidays be settled as single days with pay. However, the employee must in all cases have 10 consecutive days (2 weeks) of summer holiday.