On 25 November 2021, the Danish parliament adopted a bill entitling employers to order employees to produce a Corona passport and a negative COVID-19 test result. The following is an overview of the new rules.

Due to the continuous spread of COVID-19 in Denmark, the government and the two sides of industry have concluded a tripartite agreement allowing employers to order their staff to produce a valid Corona passport and a negative COVID-19 test result.

Based on the tripartite agreement, the Ministry of Employment presented a bill, which has now been adopted. The purpose of the Act is to enable employers to reassure their staff about the COVID-19 situation at the workplace in a quick and effective way. The Act applies to both public and private employers.

The Act comes into force on 26 November 2021.

Order to produce a corona passport

First and foremost, the Act allows employers to order an employee to produce a Corona passport as long as COVID-19 is categorised as an illness critical to society under the Epidemic Disease Act. In this connection, however, the employer is subject to a number of procedural requirements:

  • The employer must inform the affected employees in writing about the order and the reason for it. According to the legislative history behind the Act, it is sufficient for the employer to state that COVID-19 is categorised as an illness critical to society. Therefore, the employer does not have to state other than that in the reason.
  • Information about the presentation of a Corona passport must also be communicated to the employees via trade union representatives, works council representatives or via a working environment representative, in accordance with relevant legislation and any collective agreements.

The Danish Minister for Employment may lay down rules as to what defines a Corona passport. At present, a Corona passport will be valid if the employee has a negative COVID-19 test result (e.g. currently 96 hours for a PCR test), is vaccinated against COVID-19 or has previously been infected with COVID-19. Documentation of a valid Corona passport may be produced through the Corona passport app of the Danish Ministry of Health, the digital Corona passport on Sundhed.dk or in paper format.

Employees who are ordered to produce a Corona passport and to take a COVID-19 test in this connection may select to obtain the test themselves and pay the expenses for it. However, the employees may also take a test in accordance with the rules below on tests ordered by an employer and thereby obtain compensation for the time spent on the test.

Order to have a COVID-19 Test

The Act also allows the employer to order an employee to be tested for COVID-19 as soon as possible and inform the employer about the result. The employer may also demand to know when the test was taken.

An order to take a COVID-19 test must be justified by the consideration for reducing the spread of COVID-19 or by important operational considerations existing in relation to the employer in question.

The requirement for justification is described further in the comments to the bill. Here, it is stated that, in relation to reducing the spread of COVID-19, reference is made to the general principles for the exercise of managerial authority and the authorities’ rules and guidelines. An order for a COVID-19 test must also serve a specific purpose and be proportional and may not be of unnecessary inconvenience to the employee. The Minister of Employment emphasises than when subjecting employees to a test based on relevant authorities’ rules or recommendations thereon, the employer may assume that the justification requirement has been met.

It is also a requirement that the employer informs the affected employee in writing about the requirement to take a COVID-19 test and the employer’s reason for it. As for the order to produce a Corona passport, the information must also be communicated to the employees via trade union representatives, works council representatives or via a working environment representative, in accordance with relevant legislation and any collective agreements.

It is possible for the employer to order the employee to use a self-test at the workplace if the test is a CE approved test, which is used in accordance with the instructions. However, such self-test will not generate a valid Corona passport.

Tests ordered by the employer

Tests ordered by the employer must as far as possible take place during the employee’s working hours. It this is not possible, the employee must be compensated financially for the time spent on the test. In addition, the employee must have reasonable expenses covered in connection with a planned test.

A test ordered by the employer must also take place in a safe way in accordance with the rules and guidelines laid down by the authorities whether the test takes place at or outside the workplace. If a planned test is carried out at the workplace by employees or the employer, an employee who does not wish to be tested by a colleague or the employer may be tested outside the workplace, provided that the object of the test is achieved.

Employment sanctions

Employees who refuse to comply with an employer’s order to produce a Corona passport or take a COVID-19 test may be met with employment sanctions.

However, it is a condition that the employee has been informed in writing about the consequences of refusing to comply with the order. The Act does not alter how an employer may respond to employees who fail to comply with the employer’s directions. Sanctions vis-à-vis employees who refuse to comply with an order to produce a Corona passport or take a COVID-19 test may thus be a reprimand, a warning, lay-off without pay or dismissal in accordance with the rules and regulations applicable to the employment.

Amendments to the posting of workers act

The Act will also amend the Posting of Workers Act where the possibility of ordering employees to produce a Corona passport and a negative COVID-19 test result applies when an employer posts employees in Denmark, irrespective of which country’s laws regulate the employment.

Jonas Enkegaard

Partner

Erik Wendelboe Christiansen

Attorney

Marie Sylvest Fosbo

Assistant Attorney