Employees getting sick during their holiday are now entitled to a replacement holiday, and employees covered by the special tax system concerning foreign scientists may agree on take-as-you-earn holiday.

In our Newsletter of 2 March 2012, we described the bill to amend the Holiday Act. The bill has now been adopted, and most of the amendments, including the above, came into force on 1 May 2012.

One of the important changes is that an employee getting sick during the holiday is entitled to a replacement holiday when having been sick for more than five days. It is not a requirement for the sickness days to be consecutive, and they may therefore be accumulated over a number of periods. It is important to note that the employee must prove by way of a doctor's certificate that the employee was sick on the days reported, and the employee must pay for the doctor's certificate. According to the Holiday Act, the employee must prove the sickness when requesting replacement holiday. It is further a requirement that the employee has reported sick to the employer on the first day of sickness and in connection with each sickness period. It is up to the employer whether to maintain the requirement concerning the employee's provision of a doctor's certificate covering each sickness period, or whether the employer considers it sufficient that the employee has reported sick.

If the employee has earned the right to less than 25 days of paid holiday, a pro rata calculation will be made of the days for which the employee receives no replacement compared to the earned holidays. An employee entitled to e.g. three weeks' holiday must have had three sickness days before being entitled to replacement holiday.

As soon as the employee is reported fit for duty after a sickness period in connection with the employee's holiday, the employee must appear at work unless otherwise agreed.

We recommend that the employer inserts a section in the staff manual, etc. notifying the employees of the duty to report sick to the employer if getting sick during holiday, and of the duty to pay the costs for a doctor's certificate.

Another important change is that employees covered by the special tax system concerning foreign scientists (sections 48 E and 48 F of the Tax at Source Act) are now entitled to take-as-you-earn holiday with the result that the holiday may be taken on a current basis at the same time as it is earned. This change will make the holiday rules more flexible for employees who are only expected to stay in Denmark for a few years. Respecting a reasonable notice, the employer may ask an employee who has agreed on take-as-you-earn holiday to take all earned holiday.

For more information about the amendment of the Holiday Act, see our Newsletter of 02 March 2012.

The content of this Newsletter is not, and should not replace, legal advice.

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Finn Schwarz

Managing Partner

Marianne Lage

Partner