Icelanders who are able to work made to exercise their sick leave rights

Viðskiptablaðið (Icelandic business magazine) published an article by Halldór Brynjar Halldórsson partner and Jóna Vestfjörð Hannesdóttir associate at LOGOS.

Woman working on laptop computer

In the last year and a half, it’s safe to say that daily life has undergone some changes due to pandemic prevention measures. Most Icelanders now recognize, either by own experience or others, the use of remedies that few knew before, quarantine and isolation.

The health authorities are authorized to implement official measures such as quarantine in the event of a risk of infection and isolation in the case of confirmed infection. The aim is to ensure the health and safety of the public, but such measures undeniably entail significant restrictions on constitutionally protected human rights. This has however been justified when public welfare is threatened and the public’s interest is considered to outweigh individual rights. A certain assessment of interests must always be exercised and be taken into consideration that the authorities’ heavy measures are both temporary and under proportionality.

When health authorities exercise their powers by implementing quarantining or isolation, it naturally results in a disruption of people’s normal lives. Thus, those who are subject to such restrictions are generally unable to exercise their job like normally. This can cause various inconveniences, not least the possible loss of income for those involved.

Things took a turn when Alþingi (the Parliament of Iceland) passed an Act on temporary payments for the remuneration of individuals subjected to quarantine according to instructions from the health authorities. The Act includes that the Treasury is obliged to participate in wage payments of those who are unable to work due to quarantining following authorities’ implementations. The aim is to support employers who pay their employees’ wages during quarantining, when their other rights, for example, sick leave, don’t apply.

Employees, through their work, earn certain rights to a wage during absences because of their illness or their children’s. An employee who becomes unable to work because of an illness or accident is therefore entitled to wages from their employer for a certain period. According to collective bargaining agreements, certain conditions have to be met in order for an employee to be entitled to wages from their employer during sick leaves. One of the conditions is, among other things, that a person is unable to work. According to article 8 of Act no. 19/1979 on laborer’s right to advance notice of termination of employment and to wages on account of absence through illness and accidents, an employee must prove, if the employer wishes, that he has been unable to work due to illness or accident if sick leave rights are exercised.

In this context, it is worth mentioning the definition of “being unable to work” – namely: “that an illness or an accident has such a serious effect on an employee’s health and ability to work that he is unable to work for the employer.” The employee’s condition, mental or physical, is such that it prevents him from being able to do his job. In other words, it is not enough to confirm the existence of a disease, rather the employee must prove that he is completely unable to work due to the disease.

Today, about 84% of Icelanders, 12 years and older, have been fully vaccinated. Fortunately, this has fundamentally changed the effect of Covid-19 on those infected. Thus, the latest information shows that 97% of those infected remain asymptomatic or only show mild symptoms. From this statistical information, it can be concluded that the majority of those who get infected today, will not fall under the definition of “not being able to work” as it is defined in Icelandic Acts and collective wage agreements and thus do not meet the requirements for exercising their sick leave rights.

Despite this, the Treasury's contribution to paying wages due to disease control is still limited to quarantining. Infected individuals who are required to isolate are thus forced to exercise their acquired sick leave right, even though being asymptomatic and fully able to work.

In other words, an infected individual who is asymptomatic or showing only mild symptoms does not enjoy the same rights as those who are subject to quarantine. Those who are in isolation are therefore made to exercise their sick leave rights during isolation despite being fully able to work. This could lead to the fact that if the individual later becomes seriously ill, he will then have reduced rights for a sickness leave and therefore a possible loss of income.

The authorities are undoubtedly ordering those infected to isolate, even though being asymptomatic and fully able to work. This might well be justified by the public’s interest in total, e.g., because of the risk of infecting those more vulnerable groups.

Despite this, it must be questioned that an infected individual, that isn’t showing any kind of symptoms and is able / willing to work, but isn’t allowed to due to authorities’ restrictions, is made to exercise their sick leave rights. That is simply not in accordance with the definition of “not being able to work” in Icelandic Acts and collective wage agreements, which is a requirement when exercising sick leave rights.

The authors' opinion is that it can be argued that an employee in such situation may have a claim on the Treasury due to lost wage income or because of reduced sick leave rights in some cases. In connection with that, an employer who wishes to accept an employee’s contribution to work, but isn’t permitted because of the authorities’ restrictions, may also have such a claim.

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