Employers no longer have the right to require employees to test for COVID-19

The temporary legislation initiated by Danish parliament as part of the measures to combat COVD-19, giving employers the right to require employees to be tested and be informed of the result has been repealed.

Repeal of legislation

In November 2020, the Danish parliament passed legislation (Test Act) that gave employers the right to require employees to submit to COVID-19 testing and to be informed of the result.

The legislation was a temporary measure which was repealed on 1 November 2021, meaning that employers no longer have the right to require employees to test and know the result.

Employers may therefore need to revisit internal policies regarding testing in the workplace. It is of course still possible to advise employees to follow guidelines issued by the Danish Health and Medicine Authority, particularly if they have been in close contact with someone infected with COVID-19.

Can employers still ask for corona information?

There is no specific legislation dealing with an employer’s right to require employees to show a valid corona passport. If a company wishes to ask employees for evidence of their corona passports this must be objectively justified in respect of the company’s operations.

Obtaining information on an employee’s corona passport will be classed as data concerning health for the purposes of the GDPR. Employers will therefore need to show a lawful basis for collecting the data, in the same way that is needed for other categories of personal data. Employers will need to be able to justify why they require information about the employee’s corona passport. It may be possible to argue that the collecting of information is justified to limit the spread of infection, however such argument would need to be supported by an impact assessment considering the particular working environment and circumstances of the employer. Given that the Danish government has now removed all restrictions relating to COVID-19 the employer would have to be able to demonstrate strong objective reasons for the request.

It is of course possible that employees can volunteer the information to their employer. However, in the absence of such consent from the employee an employer will need to carefully consider if action can be taken against the employee. This is a difficult area and will depend on factors such as the nature of the employee’s work and the necessity of the employee showing the corona passport in the particular environment.

Please contact Mette Klingsten law firm at mk@mklaw.dk or +45 31 44 01 05 for further advice in this area.