21.8.2020 12:00

Do I have to pay wages when my employee is waiting for the results of a COVID-19 test? Can an entrepreneur get sickness allowance? SY experts answer

Returning to work and a possible second wave of the coronavirus pandemic pose many questions for entrepreneurs and employees. Harri Hellstén, Atte Rytkönen and Albert Mäkelä, specialists in employment law at Suomen Yrittäjät, answer the questions most frequently asked by entrepreneurs.

Is an employer entitled or obliged to make an employee take a test for COVID-19? Who pays for the test?

As a general rule, an employer is not obliged to make an employee take a test for COVID-19. However, if the employee’s duties include close contact with people, there may be grounds for making him or her take a test. Testing may help guarantee both employees’ and customers’ safety in the workplace.

If an employer makes an employee take a test for COVID-19, the employer is obliged to pay for it, as with all occupational healthcare costs generally. An employer may pay for an employee’s COVID-19 test, if the nature of the work necessitates testing, even if the employer does not specifically make the employee take a test. Employers are entitled to occupational healthcare reimbursements for tests for COVID-19 and antibodies. This has been the case since 1 April 2020, provided that the employer’s contract with its health services provider covers medical treatment and the related laboratory tests. Furthermore, the employer and service provider must agree in writing on COVID-19 and antibody tests before testing begins. The costs fall into reimbursement category II. To received reimbursement, employers must follow the sampling criteria of the Institute for Health and Welfare (THL) and the Ministry of Social Affairs and Health, and other official regulations and instructions .

Also note that if an employee needs to be tested to be able to do his or her job, the employer can claim the testing costs as tax deductions.

If an employee tests positive for COVID-19 after having been at work without knowing about his or her condition, should the business close its doors until everyone has been tested? In this situation, does a business owner have to pay everyone’s wages?

There is no obligation to interrupt business activities. In this situation, everyone who was exposed to the person with COVID-19 on the premises should consider taking a test. Businesses should also think about ways to protect employees’ and customers’ safety. An employer is only obliged to pay wages when the employee is off work because he or she is ill or incapable of working. An employer must also pay wages when it orders an employee to leave the workplace. If an employee decides not to work, the employer does not have to pay wages.

Does an employer have to pay wages to an employee while he or she is waiting for a COVID-19 test?

If an employee does not work, and is not ill or incapable of working, the general rule is that the employer does not have to pay wages. If, on the other hand, the employer tells the employee to stay away from work while he or she awaits a test and the test results, the employer must pay wages for this period. If an employee can work remotely, it is worth doing so.

Does it make a difference whether an employee became infected by coronavirus unknowingly while on holiday or in some other location?

The obligation to pay salary does not depend on where the infection came from. What is important is whether the employee is ill or incapable of working.

In some situations, an assessment may be needed of whether the employee increased his or her chances of getting the infection, such as by travelling to a high-risk area. By law, an employee does not have the right to sick pay if he or she has caused his or her incapacity to work intentionally or through gross negligence. Collective bargaining agreements regulate the requirements for awarding sick pay. As a general rule, travel does not mean intent or gross negligence, even if a person gets the infection while travelling.

If an employee has been abroad, is the employer obliged to pay wages during self-imposed quarantine?

At present, the Finnish government has recommended against unnecessary travel to most countries. The country-specific restrictions can be found on the website of the Institute for Health and Welfare (THL).

Here, we are talking about a recommendation, which is not binding. However, there is good reason for following this recommendation, as it aims to prevent the spread of this infectious disease.

If an employee can work remotely, it is worth taking advantage of this possibility. If remote work is not possible, an employer may require an employee without symptoms to return to work as normal. In this case, however, use careful discretion. It is important for everyone in the workplace to know the government’s and other authorities’ recommendations and how they affect the employer’s and employees’ rights and obligations. The employer is not obliged to pay salary if an employee has disregarded recommendations and travelled to an area covered by travel and entry restrictions, and upon returning cannot work, even without symptoms, because of the government recommendation.

An employee is not entitled to decide independently to stay home without symptoms on full salary. Instead, this always has to be agreed with the employer. If the employee falls ill, the employer pays salary per the collective bargaining agreement and other regulations.

An employer can ask its employees to seriously consider whether it is worth travelling to high infection-risk areas, but as a general rule it cannot stop an employee from travelling on his or her own time. However, an employer can make recommendations. The employer always decides about work trips.

How should an employer act when a nursery school or school forbids a child with cold symptoms from coming to the premises until the child has received a negative COVID-19 test result? Does the employer have to pay its employees when they are forced to be at home with their children?

An employee has the right to childcare leave of up to four days to take care of or organize care for his or her child or other permanent member of the household aged under 10 who suddenly falls ill. Under the Employment Contracts Act, this is unpaid leave, but under several collective bargaining agreements the employee is entitled to paid childcare leave for no more than four days. In this respect, it is always important to check the regulations of the collective bargaining agreement that the employer is bound by. However, the paid leave under the collective bargaining agreements only applies when the child is ill.

If an employee’s child is suspected to have COVID-19 and the nursery school refuses admission before test results are known, the employee may still be entitled to unpaid childcare leave, i.e., without the employer having to pay wages. If an employee needs to be away from work to care for a family member or other close person, the employer must try to arrange duties so the employee can take some time off work temporarily. The employer and employee agree on the duration of the leave and other arrangements. On the employer’s request, an employee must explain why the leave was necessary and why he or she has returned to work from it. An employer is not obliged to pay salary for the leave described above. If an employee can do remote work during an absence, the employer must, naturally, pay wages for the time worked.

What if an entrepreneur has to stay at home with a child for the above reason? What happens to the entrepreneur’s income?

No benefits exist for this situation. An entrepreneur stays at home to care for the child at his or her own expense, as in normal situations concerning ill children. However, the guardian of a child aged under 16 may receive infectious disease sickness allowance in a quarantine situation (see the next question).

When can an entrepreneur or employee receive infectious disease sickness allowance?

Kela can pay infectious disease sickness allowance when the person has been ordered to stay away from work, isolated or quarantined to prevent the spread of an infectious disease, such as COVID-19. An infectious disease doctor in a municipality or hospital district makes such a decision.

There is no qualifying period for the infectious disease sickness allowance. It can only be paid for the days when the quarantine or isolation prevents the person from working. Thus, the allowance is not paid when the work could be done remotely, for example. Infectious disease sickness allowance is not paid when the person chooses to stay at home or away from work, such as to wait for a COVID-19 test result. It is only paid on the basis of an infectious disease doctor’s decision. The mere instructions of a nurse, doctor or employer are not sufficient grounds for receiving the allowance.

The guardian of a child aged under 16 may receive infectious disease sickness allowance if the child has been ordered to stay at home because of an infectious disease, and the parent cannot thus work.

Who can get sickness allowance and when?

A person who has been declared incapable of working, and who has been incapable of work for at least the qualifying period, can get sickness allowance. For entrepreneurs insured under YEL, the qualifying period is the day that the entrepreneur falls ill. “Working days” mean Monday–Saturday, excluding public holidays.

If an entrepreneur is not insured under YEL, the qualifying period is the day he or she falls ill and the following nine working days. This is the same qualifying period as for employees; however, employees receive wages for at least the first ten days of work incapacity. The name of this benefit for entrepreneurs is YEL allowance (YEL-päiväraha), and it is paid for the “general qualifying period”, i.e., two to ten sick days. If the entrepreneur’s incapacity to work lasts longer than the general qualifying period, it is replaced by sickness allowance.

To receive the YEL allowance, you must obtain a nurse’s note proving incapacity to work, at the very least. To receive sickness allowance, you must generally obtain an A note (“A-todistus”) from a doctor for the first 60 days of work incapacity, and a more extensive B note (“B-todistus”) after that.

If the employee is incapable of working for longer than the qualifying period for the sickness allowance, and the employer is still obliged to pay the employee during work incapacity, then the employer can receive the sickness allowance. Where entrepreneurs are concerned, the allowance cannot be paid to the business. An entrepreneur may receive sickness allowance while waiting for the results of a COVID-19 test, if a doctor or nurse declares him or her incapable of working because of the symptoms.

You can read more questions and answers about coronavirus on this site.

Elina Hakola

elina.hakola (at) yrittajat.fi

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