The Employer’s Duty to Follow Up Employees on long-time Sick Leave

Many employers are uncertain about what actions to take when employees go on long-term sick leave. Most employers have heard of follow-up plans and dialoguemeetings, but are unsure about what should be the content of such activities, what deadlines that exist and what are the requirements if the employee is unwilling or unable to contribute. If there is little prospect ofthe employee recovering and returning to work, even termination of the employment may be relevant.  

The employer is responsible for paying the employee’s salary for the first 16 daysof sick leave. After that, NAV (the Norwegian Labour and Welfare Administration) takes over the payment of sickness benefits. Although the employee is unable to perform work due to illness, their right to receive (sick) pay does not cease.

Most employers are aware that the Working Environment Act imposes requirements on the work environment. These requirements are primarily outlined in Chapter 4 of the Act, which includes general requirements for the working environment, requirements for facilitation, participation and development, as well as both psychosocial and physical working environment standards. In addition, there arenumerous HSE (health, safety and environment) requirements that vary depending on the nature of the business. The employer is required to provide training and should offer opportunities for professional and personal development based on the employee’s abilities, competence, and age. The employee should be given autonomy, influence, professional responsibility, and variety in their worktasks. Their integrity should be safeguarded through contact and communication with other employees, and they must be protected from harassment or other improper conduct. The workplace must also be designed to avoid adverse physical strain on the employee. The employer is obliged to comply with all these requirements also when facilitating the employee’s return to work afterlong-time sick leave.

Follow-upPlan

For employees whose work capacity is reduced due to accidents, illness, strain orsimilar, § 4-6 of the Working Environment Act obliges the employer to, as faras possible, implement necessary measures to enable the employee to retain their job or be assigned alternative tasks. As soon as it becomes clear that the absence will be long-term, the employer is obligated to begin developing a follow-up plan for the employee on sick leave. The purpose of the plan is to 1) clearly outline adjustments and measures, 2) increase the chances of an earlier return to work, and 3) ensure better follow-up by NAV. The plan should include a description of work tasks, how the employer will facilitate the return, any need for external assistance, and a plan for further steps. Chapter 4 of the Working Environment Act also provides useful guidance on what kind of accommodation is expected from the employer.

The employer should, as a general rule, allow the employee to return to their regular work, possibly with special accommodations, changes to technicalequipment, or through rehabilitation. To create the follow-up plan, theemployer may use NAV’s digital tool or another suitable method. The most important thing is that the plan is thorough and tailored to the employee’s situation to ensure a safe and effective return to work.

The follow-up plan must be ready no later than four weeks after the employee has been away from work. The plan should assess the employee’s tasks and workcapacity, include measures the employer can implement, measures involving public assistance, and a plan for ongoing follow-up. The employee is expected to contribute to the preparation of the plan. The plan must then be shared with the person issuing the medical certificate (doctor).

Dialogue Meeting

Unless clearly unnecessary, the employer must invite the employee to a dialogue meeting to discuss the follow-up plan no later than seven weeks after the sickleave began. The medical certifier may also be invited if requested by either party. The aim is to discuss what can be done to avoid unnecessarily prolonged absence. The parties should jointly assess possibilities and limitations in order to update the plan. Even with partial sick leave, either party has theright to request a dialogue meeting. For the employee’s convenience, themeeting may be conducted via phone or video.

NAV is responsible for organizing Dialogue Meetings 2 and 3 if the sick leave extends beyond 7 weeks. Dialogue Meeting 2 is held with the employee and employer after26 weeks of sick leave, or earlier if one of the parties requests it. The purpose is to identify good solutions to help the employee return to work orother work-related activities. These meetings are also held unless they areclearly unnecessary. All parties are required to attend when NAV calls adialogue meeting.

The Employee’s Duty to Cooperate

Although employees on sick leave are not expected to disclose their diagnosis to the employer, they are still generally obligated to maintain a dialogue. The employees are  expected to inform their employer of when they may be able to return to work and what accommodations might be necessary. They are also expected to contribute to the follow-up planand participate in dialogue meetings.

However, it is important to remember that an employee is still on sick leave during this period. He/she has the right to privacy regarding his/her diagnosis andshould be left in peace as much as possible. Employer contact should be limitedto what is necessary for proper follow-up. In cases of uncertainty, the employer may contact NAV for guidance. Some illnesses may be so severe that follow-up or participation is not possible or appropriate. In such cases, the employer should document its considerations and provide written notice to the employee, the certifying physician, and NAV explaining why normal follow-up is not deemed appropriate.

If the employee is capable of participating in follow-up but chooses not to, this mayprevent the employer from implementing accommodations. Failure to initiate measures may prolong the sick leave and delay the employee’s return to work. Further consequences may include the employer disputing the employee’s right tosick pay and potentially stopping payments. Such actions must follow the rulesset out in the National Insurance Act.

Even if the employee does not contribute to the follow-up plan or fails to attend dialoguemeetings, the employer still has a duty to follow up – though with some adjustments. The employer must document that it has attempted to communicatewith the employee – for instance, through invitations to dialogue meetings or attempts to prepare a follow-up plan. The employer should also record a justification for any deviations from the legally mandated activities in connection with the employee’s long-term sick leave.

Right to Terminate Employment During Sick Leave

There are situations where there is little or no prospect of the employee returning to work. Redeployment may not be possible, or improvement may not be expected within a reasonable time. There may also be other reasons for the employer not wanting to retain an employee on long-term sick leave – such as lack of adaptation, poor performance combined with absence, or unpredictable absences making it difficult to plan and organize work. It should be noted that the protection period resets if the employee returns to work after sick leave,unless the return was very brief. While a temporary replacement may help, they too require predictability.

Accordingto § 15-8 of the Working Environment Act, an employee who is partially or fullyabsent from work due to accident or illness cannot be dismissed for that reasonduring the first 12 months after the incapacity began. However, the employee can be dismissed during this period if the employer can prove that the terminationis not due to the sick leave, but for another objective reason. In other words,there must be other documented circumstances that justify a lawful termination. The burden of proof lies with the employer to demonstrate that the dismissalwas unrelated to the employee’s illness.

Once the employee has been on sick leave for over a year, they are no longer protected from termination based solely on the sick leave. However, the dismissal must still be based on objective grounds, as per § 15-7.

Whether the employer proceeds with termination during the first year of sick leave or afterward, the employee may contest the dismissal by claiming that the employer did not adequately follow up during the sick leave period. For this reason, it is essential that the employer can document that they have fulfilled allfollow-up obligations as stipulated by the Working Environment Act.

Seland |Rödl & Partner AS has expertise in employment law. We are happy to assist with any issue related to the process of managing long-time sick leave.