Testing employees for Covid-19

On 19 November 2020, the Danish Parliament passed a bill that gives employers the right to require employees to be tested for Covid-19 and for employers to be informed of the test result. The law only applies for a limited period until 1 July 2020.

On the 19 November 2020, the Danish Parliament had the second and third reading to consider a bill which gives employers the right to require employees to be tested for Covid-19 and to be informed of the test result. In addition, employers may require employees to provide the employer with information about the time of testing as soon as possible, if the employee has tested positive for Covid-19.

It follows from the bill that an employer can only order an employee to be tested for Covid-19 if it is objectively justified in the interest of limiting the spread of infection, due to health and safety considerations, or for other significant operational considerations relating to the employer.

The employer is required to notify the employee in writing that he or she will be subjected to Covid-19 testing, the written notification must also state the reasons for imposing the test on the employee. This information must also be given to the employees via representatives in cooperation committees, etc. or via a work environment representative.

It also follows from the legislation that where an employer requires an employer to undergo a test it must, as far as possible, be carried out during normal working hours. If this is not possible, the employee must be compensated financially for the time spent on the test, including reimbursement for any travel costs.

Testing of employees must be done in a reassuring manner and in accordance with the rules and guidelines laid down by the health authorities.

If the employer plans to test employees in the workplace and an employee objects to be tested by colleagues or the employer, the employee may instead be tested outside the workplace, provided that the purpose of the employer test is not thereby wasted.

An employer may institute disciplinary sanctions against employees who do not comply with the employer’s reasonable request for testing, provided the employees have been informed in writing in of the requirement for testing and that that such sanctions can be applied.

It is important that employers comply with the requirements in the legislation as an employee who is required to take a test without the requirements being fulfilled, including that the request is put in writing, may be awarded compensation

The adoption of this legislation also entails changes in the Posting of Workers Act. The Act on Employers ‘Access to Impose Employees Tests for Covid-19’ also applies when a company posts an employee in Denmark, regardless of which country’s law otherwise regulates the employment relationship.

Dataprotection

The law does not state how the employer may use the information that emerges in connection with the Covid-19 testing of employees. Typically, the employer may wish to in-form an infected employee’s closest colleagues so that any further infection among the employees and their relatives can be prevented.

Information on Covid-19 infection will be classed as health information in accordance with Article 4 (15) of the Data Protection Regulation, and the information should therefore only be passed on to the employee’s colleagues if the employee consents to it, cf. Article 9 (1) of the Data Protection Regulation. 2, letter a.

Before the employer passes on information about an employee’s infection with Covid-19, it is therefore recommended that the employer obtain the employee’s written consent to do so. A statement of consent to pass on information about an employee’s infection with Covid-19 can be requested by contacting Mette Klingsten law firm.