How to lawfully prevent the spread of coronavirus at the workplace

Many companies have complied with the Danish government’s recommendation to have employees work from home and are therefore planning a reopening of the workplace when these recommendations change. Other companies have stayed fully or partly open.

With changing guidelines, requirements and new rules, it can create confusion for many to plan how to comply with the duty to arrange the workplace in a safe and healthy manner. Therefore, it is important to secure focus on the many questions which appear in relation to where the companies’ obligations under applicable employment law ends, and where the limitations begin.

Can companies introduce temperature screening by the entrance to the workplace?

Companies in both Denmark and abroad have initiated screening arrangements by the entrance to the workplace to limit the spread of infection, for example by measuring the employees’ temperatures. Should an employee shows signs of fever, the employee will be denied access.

Companies must be aware that such arrangements are illegal in Denmark. Temperature screenings are, among other things, contrary to the Danish Health Information Act and the applicable rules on data protection. At the same time, it will in many cases also constitute an unlawful control measure towards the employees.

How do companies arrange the workplace safely?

Companies must of course first and foremost be aware of the guidelines for arranging the workplace which were made and updated by the Ministry of Industry, Business and Financial Affairs in relation to the previous reopening. We have previously described the various requirements here. When companies are letting employees work from home, the rules in the Working Environment Act also apply as a main rule. We have previously written about the home office and coronavirus here.

At the same time, companies that provide housing for their employees must be aware of the new requirements to prevent spread of infection in relation to accommodation.

Can companies require employees to get vaccinated against coronavirus?

For many companies, the question of whether it can - as part of its managerial right or the Danish Working Environment Act - require employees to be vaccinated against coronavirus will appear and also if it can lead to termination of employees who refuse to be vaccinated. However, companies must be very aware that as a main rule such a requirement will be unlawful and is not possible, neither as part of the managerial right or the Danish Working Environment Act. Another question then is what consequences it might have for employees who refuse to be vaccinated. We have taken a closer look at the question here.

Can companies require employees to be tested for coronavirus?

Pursuant to a new Act, companies now have access to require that employees get tested for coronavirus and to receive the test result as fast as possible. However, there are some requirements and procedures for when, where and how companies can make such testing requirements.

For example, for companies to require that an employee to be tested for coronavirus, it must be objectively justified in the interests of limiting the spread of coronavirus, including work environment considerations or significant operational reasons. Companies must also inform in writing that a requirement for testing for coronavirus exists and the reason for this. We have previously described the various requirements here.

As for the possibility to initiate temperature screenings at the workplace, companies that do not meet the requirements for introducing a requirement on testing for coronavirus, do not have access to receive their employees’ health information. Therefore, companies that do not satisfy the conditions under the new Act cannot lawfully require employees to get tested for coronavirus. We have previously described how companies should approach such a situation here.

Can companies otherwise offer tests for coronavirus at the workplace?

Many companies are currently considering offering their employees to get tested for coronavirus even though the requirements in the abovementioned Act have not been met. In some situations, companies can lawfully offer voluntary coronavirus tests to the employees, but companies must in the light of the Danish Health Information Act make sure that it neither request, gather or in any other way gain access to the employees’ test results. Employees can naturally receive the test results themselves and then decide if they want pass on the test result to the company. We have described the possibility here.

What requirements must companies meet when foreign employees visit the workplace?

Pursuant to a new Act, companies with foreign employees must at the same time be aware that there is a requirement for employees from certain countries, regions and areas to get PCR-tested for coronavirus after entering Denmark. The PCR-test must be performed after 48 hours, at the earliest, and 96 hours, at the latest, after the test which secured the employee entry into Denmark has been performed. At the same time, a number of requirements on documentation and isolation apply for these employees to limit the spread of infection at the workplace and in the rest of the country. Read more about the new requirements here.

Can companies register health information on the employees?

When companies make requirements on tests or receive information on foreign employees, it is important to be aware that test results reveal information on the employee’s health. Therefore, it is a matter of sensitive information which triggers stricter requirements under the data protection rules. In regard to the reopening of the workplace whereinafter the number of tests for coronavirus most likely will increase, companies must therefore also remember data protection when the workplace is secured additionally.

IUNO’s opinion

We are still in an unprecedented situation and companies must therefore continuously through ongoing measures and dialogue with their employees make sure that the workplace is arranged in the best possible way to avoid disproportionate spread of infection, irrespective of whether or not the employee continues to work from home.

IUNO recommends that companies make clear action plans for arranging the workplace, or the future reopening of the workplace, especially if testing requirements will be introduced at the workplace or if the company considers implementing measures that involve the employees’ health information or other operations which can also be extensive for the employees’ integrity and privacy.