COVID-19: effect on work-rotation schemes
Quarantine implemented by the Norwegian governement may increase the strain on foreign employees working in Norway.
Quarantine implemented may increase the strain on foreign employees in Norway.
The high number of foreign employees potentially affected by the quarantine provision implemented by the Norwegian government may increase the strain on the employees that are currently working on projects in Norway. This may for instance regard companies applying a rotation scheme for their workers whereby the employees work longer hours than normal while in Norway, against receiving time off later on in accordance with a rotation to be in their home country.
In certain industries, for instance within shipbuilding and the building and construction industries, it is quite common to establish "rotation schemes"; where one is applying average calculation of working hours over a period of time. A typical rotation scheme involves a working period, where the employees work longer days/more hours than the standard that follows from the Norwegian Working Environment Act (WEA) or the applicable collective agreement, followed by a resting period where the employee will leave the site and go home to rest and be with his/her family. The number of working hours during the agreed average calculation period must however on average be within the limits of normal working hours as stipulated by the WEA or the applicable collective agreement.
Rotation schemes can be agreed individually with each employee, with the employee representative(s) provided the company is bound by a collective agreement, or the employer may apply for approval of schemes to the Norwegian Labor Inspection Authority..
Please note that the WEA operates with strict regulations in this respect. It is imperative that employer's consider whether the conditions for applying average calculation is met. Moreover, the limitations to the rotation schemes as stipulated by law must be observed before instigating work on rotations.
COVID 19 impact –change of work-teams on site- quarantine
Norway has implemented national quarantine regulations which dictates that persons that arrive in Norway to work here (and who has a valid residence permit), is allowed to enter the country, but must be confined to their home or place of accommodation (provided that the accommodation arrangement is considered suitable) for a 14-day quarantine period.
We also experience that employees leaving Norway are subject to similar regulations when they return to their home country during the resting periods.
Why is this important?
As discussed in another article (Force Majeure in construction contracts), the contractor cannot necessarily claim that the current situation is unsolvable and stop the work on projects with reference to Force Majeure. It can probably be argued that the current situation is a Force Majeure situation, but according to the standard Norwegian construction contracts that only means that the contractor can get extensions of deadlines (without additional compensation). The contractor still needs to solve the situation and, if possible make arrangements that normalize the situation again.
The question is what possibilities the employer has to adapt to this situation without having to suffer additional loss of productivity, delays and increased salary costs related to unproductive employees confined to mandatory quarantine?
Possibility to amend the working hour schemes?
Due to the strict quarantine provisions, this new situation may entail that the workers already in Norway and that are able to work, will have to work longer than originally anticipated or be imposed to work overtime in order to meet project schedules etc. It is important to assess whether this may be done legitimately within the current agreements/approvals regarding rotation schemes, or if overtime with the right to overtime compensation have to be imposed. During this period, it is also important to observe the mandatory provisions in regards to the maximum use of overtime and the total number of working hours/overtime per day, per week etc. Further, the employer must observe the general requirements regarding the working environment, implement and document safety considerations, and not expose the employees to adverse physical or mental strain.
The Norwegian Working Environment Act contains an exception from the applicable working hour provisions in case of work that, owing to natural disasters, accidents or other unforeseen events, must be carried out in order to avoid damage to life or property. In such case, the employees shall be ensured corresponding compensatory rest periods or, where this is not possible, other appropriate protection. Whether this exception may apply or not in regards to the current situation, will have to be assessed on a case by case basis.
Further, it is possible to develop new rotation schemes that allows for longer periods of work and rest. Depending on the circumstances, these schemes might have to be approved by the Labor Inspection. We may also add to this that the Labor Inspection, given this extraordinary situation, may approve rotation schemes that under normal circumstances would not be approved. Finally; depending on the employees' social security status (member in Norway or member in home country), workers in mandatory quarantine may be entitled to sick-pay, - thus partially relieving their employer from the salary cost related to unproductive workers in quarantine.
Amendments of work-rotation schemes, is not a straightforward matter. In some instances, a change of rotation scheme may lead to a requirement for a thorough risk evaluation.
With regard to amending work hours, the employer may under the managerial prerogative impose changes within the scope of the employment contract unilaterally. We assume that the managerial prerogative will be somewhat broader in relation to the current and extraordinary COVID-19 crisis, and that the employer may therefore unilaterally impose fairly extensive temporary modifications with regard to the duties to be performed by each employee, as well as when and where these shall be performed. Each employee's employment contract is therefore an important factor when considering the limits for the managerial prerogative.
Our advice in this situation is to study the law and / or applicable tariff agreement carefully to explore the possibilities at hand, and secure notoriety about all circumstances and considerations (hereunder risk-evaluations).