Employers: Q & A about the changes in rules for follow-up of absence due to illness

Published under: Stoltenberg's 2nd Government

Publisher Ministry of Labour

What do the proposed changes in the Working Environment Act and National Insurance Act regarding follow-up of employees on sick leave entail? Here are answers to 21 questions relating to the content of Proposition 89 L regarding quicker follow-up and sanctioning of breaches of the regulations when employees are ill.

1. What are my most important duties as an employer when an employee becomes ill?

Answer: Your most important duties are facilitating the working situation and tasks of the employee to enable the employee to keep his/her job during illness. If this is not possible, you must try to find other suitable work. It is essential that you maintain a dialogue with the employee when he/she starts sick leave. It is therefore important that you, in cooperation with the employee, prepare a follow-up plan and hold a dialogue meeting with the employee early in the sick leave process. The follow-up plan must be prepared as early as possible after the employee's sick leave commences and no later than four weeks. You must submit the plan to the sick-leave certifier as soon as it is drawn up and no later than within four weeks. The dialogue meeting must be held as early as possible after the employee's sick leave commences and no later than within seven weeks.

2. How extensive is the duty to facilitate work for employees on sick leave?

Answer: You must, to the extent possible, ensure necessary facilitation so that an employee on sick leave can return to work, even if this is costly, resource-intensive and to your disadvantage as an employer. Examples of facilitation measures can include adaptation of working hours, routines, work load and equipment or assistance to get to the place of work. If the relevant facilitation measure does not yield the desired effect, you must also consider the possibility of assigning the employee to other suitable work in the enterprise. IA enterprises can apply to NAV (the Norwegian Labour and Welfare Administration) for subsidies for the implementation of specific facilitation measures.

3. What should the follow-up plan contain?

Answer: It must contain an evaluation of the employee's duties and work capacity and relevant facilitation measures under the auspices of the employer or possibly NAV, so that the employee can return to work as quickly as possible. The plan must be prepared in cooperation with the employee

4. Who should receive the follow-up plan?

Answer: The follow-up plan is intended to be a tool for the employee and the employer. The physician/sick-leave certifier and NAV may also have use for the plan; the physician/ sick-leave certifier when assessing the possibility of partial work and NAV to assess the needs when, for example, considering the need for work-related measures. The plan must therefore be sent to the sick-leave certifier when prepared and no later than four weeks. Any revised plans should also be sent to the sick-leave certifier. NAV must receive the plan no later than within nine weeks of the employee starting sick leave. A template for the plan is available on NAV's and the Norwegian Labour Inspection Authority's web sites and the plan can be sent electronically to NAV.

5. What do I do if the employee does not participate in the preparation of the plan?

Answer: You should enter a dialogue with the employee to find a solution. If the plan still cannot be prepared due to lack of cooperation from the employee, then you must report this to NAV. This can be done on the reporting forms you must send to NAV within nine weeks of the start of the employee's sick leave. As the employer, you can also ask NAV to call a dialogue meeting under the auspices of the agency.

6. Must a plan always be prepared and a dialogue meeting held?

Answer: Generally, you must always prepare a follow-up plan and hold a dialogue meeting when the employee is on sick leave for several weeks. The exemption is if this is obviously unnecessary. The exception is limited in scope and may, for example, include cases where the illness is of a nature that means that the employee in any case will return to work without needing special facilitation measures in the workplace. Cases involving serious illness, where it can be established that that employee will not be able to return to work, may also be covered by the exception.

7. Who must participate in the dialogue meeting?

Answer: The employer and the employee on sick leave are the key participants in the meeting. The physician/ sick-leave certifier must be invited to the meeting, unless the employee objects. It is important that you, as employer, contact the physician/ sick-leave certifier to schedule a suitable meeting place and time. The occupational health service should also participate in the meeting if the enterprise is affiliated with such a service. The employee can choose to bring an employee representative. The employer will summon the various participants to the meeting.

8. What do I do if some of those summoned do not attend the meeting?

Answer: If the employee does not attend the meeting, you should contact him/her to find out why. A new meeting can then be scheduled, if relevant. If the employee does not have a valid reason not to participate in the meeting, you, as the employer, can notify NAV of this. This can be done on the reporting form you send to NAV after nine weeks, see question 10. If the sick-leave certifier does not attend the meeting he/she has been summoned to, report this to NAV on the reporting form you send to NAV after nine weeks (tick appropriate the box).

9. What should be the topic of the dialogue meeting?

Answer: The main topic in dialogue meetings should be the necessary facilitation for the person on sick leave to use his/her ability to work in an optimal manner, what and which tasks the employee can perform in spite of ailments/limitations and when the employee can be expected to return to regular work. The meeting must be a conversation about work opportunities and not illness, and the goal of the facilitation is to enable the employee to return to work as quickly as possible.

The topic for the dialogue meeting will to a certain extent depend on the participants, i.e. whether the sick-leave certifier/physician attends. It is important that the meeting results in agreement about a goal in the form of a tentative date for return to work, gradual increase in activity and which other participants should be included in the process. In this respect, the topic of the meeting and the follow-up plan is more than an activity plan.

During the dialogue meeting, you will review and work on the specifics of the follow-up plan, including clarification of what the employee can do in the workplace and which facilitation measures are necessary for partial or full resumption of work. The meeting is primarily intended to highlight opportunities and achievements rather than further sick leave. Important issues: which tasks does the enterprise have that the employee can perform in spite of his/her ailments? Is there a need for technical aids in connection with the facilitation? Can the tasks be distributed in another way for a period of time? Are there any organisational measures that can be taken? Should the employee be spared particular work loads or tasks for a period of time? It is important to set a time limit for the measures and to assess the effect after a set period of time to ascertain whether the facilitation has the desired effect. With graded sick leave, the organisation of the work will also be a topic. Appropriate and correct grading requires dialogue. The grading is based on the reduction in function and what is practically feasible at the workplace. Not only the working hours, but also the tempo of the work can be scaled back, allowing the employee to attend work for more hours than the grading would indicate. The graded sick leave will thus reflect the reduced efficiency.

10. What are my duties as an employer to NAV when an employee is granted sick leave?

Answer: When an employee is on sick leave, you must submit the follow-up plan and report that the dialogue meeting has been held within nine weeks of the first day of the sick leave. It is also important that you report to NAV if the facilitation internally in the enterprise was unsuccessful and there is need for assistance/work-oriented measures under the auspices of NAV. NAV will hold a dialogue meeting between you and the employee no later than within 26 weeks of the first day of the sick leave. If summoned, you are required to participate in this meeting. You must submit a revised follow-up plan to NAV no later than a week before the meeting.

11. What must I as an employer do to avoid sanctions for failure to follow up?

Answer: Within nine weeks of the first day of the employee's sick leave, you must notify NAV that the follow-up plan has been prepared and the dialogue meeting held, see question 10. The follow-up plan itself must also be submitted. The reporting takes place electronically. If the duty to report is not complied with, then NAV will issue a notice regarding a fine. To avoid sanctions, you must comply with the duties relating to preparation of plans and holding of dialogue meetings and notify NAV of this within the deadline stated in the fine notice (three weeks).

As an employer, you must participate in dialogue meetings under the auspices of NAV if you are summoned to such meetings. You must submit the follow-up plan to NAV within one week prior to the meeting. Failure to comply with these duties can result in a fine. You will receive information about the duties in connection with this meeting in the summons from NAV.