Committee proposes clarification of employers' responsibility for rehabilitation of employees

Since 1992, Swedish employers have been responsible for the rehabilitation of employees who become incapacitated. However, for a number of reasons, many employers fail to meet their responsibilities. In August 1998, an official committee presented a report with proposals which were intended not only to clarify the statutory provisions, but also to ease the burden on employers.

During the 1980s, ill-health and occupational injuries increased in Sweden, and the social consequences of long term sickness absence came to be seen to be as equally as devastating as unemployment. Consequently, much thinking took place on finding ways to help sick or injured employees to return to work rather than resigning themselves to an existence outside working life. It was stressed that this should be done by monitoring workers' difficulties as early as possible and by taking measures to help them before the problems became irreversible. With effect from 1992, the responsibility for this was placed on employers.

The basic thinking behind placing the responsibility on employers is that it is the workplace where sickness absence, and thus the need for rehabilitation, is most likely to be observed at an early stage, and where the need for any changes can be identified. In addition, employees who need rehabilitation after a period of illness may receive valuable support from their colleagues.

Current regulations

According to current regulations, as specified in the National Insurance Act, a typical case should be dealt with as follows.

When a worker has been on sick leave for more than four consecutive weeks or more than six times during 12 months, the employer must investigate if the worker needs some kind of rehabilitation - unless an investigation seems unnecessary. An investigation must also be undertaken at the request of the employee concerned. This obligation on the part of the employer exists regardless of the cause of the employee's ill health, and the investigation should deal with all kinds of rehabilitation measures - medical and social as well as work-related. It should be completed within eight weeks from the beginning of the period of sickness absence which gave rise to the investigation.

The regional social insurance office then formulates a rehabilitationplan, if it finds that there are measures which could help to shorten the employee's sickness absence or to prevent or cure any incapacity. The plan should provide information on who is responsible for what measure and when such measures are to be completed.

Thus, even though the employer must investigate the need for all kinds of rehabilitationmeasures, the employer is responsible only for effecting measures which can be taken within or in connection with its own activities and with the aim of enabling the worker to return to work in the organisation concerned. This might mean: giving the employee concerned the opportunity to try new tasks or to return to work on a gradual basis; giving the employee additional training (in which case the employee receives a special benefit in lieu of pay from the employer); or providing special tools or technical equipment (in which case the social insurance office may help with a special grant).

The social insurance offices are supposed to ensure that employers fulfil these obligations in every individual case. Employees have a right to rehabilitation, and if necessary the authorities are to act as their representatives. In addition, the Work Environment Act requires all employers to have a "suitably organised scheme of job modification and rehabilitation activity" in their businesses, which means that the Labour Inspectorate can intervene against employers which systematically neglect their duties.

The reality

However, according to a report issued by an official committee on 17 August 1998, only a minority of employees receive the rehabilitation that they are entitled to (Arbetsgivarens rehabiliteringsansvar, SOU: 1998:104). Employers in general are unaware of their responsibilities in this respect, and they often do not investigate their employees' needs for rehabilitation at all. Where there are investigations, many of them are so fragmentary that it is impossible to judge what the needs of the employee really are. The social insurance offices, on the other hand, fail to remind employers of their duties.

The reasons for this are complex, the committee states. Its task was to propose amendments in order to make the statutory rules more stringent, but its conclusion is that the rules are only a minor part of the problem. The main problem seems to be the lack of a clear programme for rehabilitation. Thus, the many different parties involved may simply need more time to develop their planning, as the reform of 1992 was radical and far-ranging. In addition, it was based on the assumption that employers normally have access to occupational healthcare facilities, and the associated expertise is not as prevalent now as it used to be (SE9804181F). The committee also points out that the orginal regulations were introduced when there was an economic boom and a shortage of labour, whereas at present many companies are embarking on redundancy measures which often include making healthy and highly productive employees redundant.

That said, the committee proposes some modifications which are intended not only to clarify the statutory rules, but also to ease the employer's burden.

The employer's responsibility at the initial stage should be limited to trying to find out what kind of work-related rehabilitation measures the employee may need in order to be in a position to return to work in that particular company. The committee recommends that it should be optional for the employer to investigate the medical and social rehabilitation requirements of the employee. The National Social Insurance Board (Riksförsäkringsverket, Rfv) should draw up a check-list which would clearly indicate what is expected of the employer.

The report should be communicated to the social insurance office within six weeks. If there is a need for further investigations, this should be the responsibility of the social insurance office, which has 28 days to complete the investigation and formulate a rehabilitation programme.

Finally, the law should clearly state that the employer is responsible for financing work-related rehabilitation measures. The employer should be entitled to have up to 50% of the costs of financing such measures reimbursed from the national health insurance fund.

Commentary

The committee's task was to concentrate on the employers' role, without going deeper into the work of the social insurance offices. It did not cover the respective roles of the medical services, the social services or the labour market administration. The committee expressed some disappointment with this restriction on its terms of reference, as it has prevented the committee from taking a comprehensive view of the complex issue of rehabilitation. (Kerstin Ahlberg, Arbetslivsinstitutet)

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