Employees on sick leave entitled to look for new job

The Swedish government has proposed a new law granting employees on long-term sick leave the right to work for a different employer for 12 months without losing their former job. This will enable such persons to find a job where they can work despite their illness, thereby avoiding detachment from the labour market. However, the social partners have expressed reservations about the new law; they believe that it undermines the system of collective bargaining.

Proposed law

A new law concerning workers on sick leave is one component of the rehabilitation process proposed by the government in its budget bill for 2008 (SE0802029I, SE0710029I, SE0803019I), and will take effect from 1 October 2008. The objective of the new law is to make it easier for employees on long-term sick leave to take up another job which matches their work capacity and thereby return to the labour market. The law is in principle obligatory for employers and is introduced for the benefit of employees.

The following conditions must be fulfilled in order to take time off from the current position to try a new job:

  • due to illness, the employee has had reduced work capacity for a minimum of 90 days;
  • the worker has an employment contract with another employer from day 91 to day 180 during the period of sick leave;
  • the period of time off from the first job corresponds to the contract duration of the second job;
  • the maximum time off to try another job is 12 months;
  • the employee must notify the employer two weeks prior to starting the period of time off;
  • the employee should consult the employer on when to take time off. If the employer and employee do not reach an agreement on the period of absence, the employee’s demand for time off has priority;
  • the employee can terminate ongoing time off to return to the first job and thus has to inform the original employer as soon as possible. If the employee wants to return to the first position after the time-off period has ended, he or she has to notify the employer at least one month in advance.

Reaction of social partners

The Swedish Confederation of Trade Unions (Landsorganisationen i Sverige, LO) believes that the new law does not aim to encourage the employee on sick leave back to the original employer. LO perceives the risk that the new law will actually decrease employment protection. If an employer wants to dismiss an employee with reduced work capacity due to illness, and this person at the same time is working in another job, it will be difficult to argue that the worker should undertake rehabilitation measures. LO also states that the right to time off to try another job should be part of the rehabilitation process, but emphasises that this issue should be handled by the social partners and according to collective agreements.

Meanwhile, the Confederation of Swedish Enterprise (Svenskt Näringsliv) rejects the idea that an employee on sick leave should have the right to take time off to try a new job. According to the confederation, extensive legislation already exists concerning time off and additional provisions are not required as they will only increase the administrative burden on companies. The employer confederation also highlights that, within collective agreements, rules apply in relation to taking time off to try another job for rehabilitation purposes. In addition, the employer and employee already have the opportunity to negotiate directly concerning time off, for example to start a new business, search for a new job or for family reasons.

In the opinion of the employer confederation, the new law will give the employee too much influence on when to take time off, compared with the employer. This will make it harder for the company to organise and plan its business. The confederation believes that it would be unfortunate if – through this law – the government limits the power of the social partners to adopt the right to time off by means of collective agreement.

Commentary

The government has proposed this new law to encourage people back to suitable work and avoid detachment from the labour market. Nonetheless, it is understandable that the social partners are critical of the new law, since it affects their right and power to negotiate and find common solutions through collective agreements. Whether this new law will help persons on sick leave to return to work remains to be seen; however, it might be unnecessary considering the well-functioning collective bargaining system which already exists in Sweden.

Thomas Brunk, Oxford Research

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