We have the world’s best working environment, the most generous sick leave scheme - but also the highest rates of sick leave. NHO (the Confederation of Norwegian Enterprise) wants new regulations, LO (the Norwegian Confederation of Trade Unions) strongly disagrees, and the social partnership has completely broken down on this issue. I have a simple solution: forget about new regulations - just ensure that we actually apply the ones we already have.
The article was first published in HR Magasinet number 1 – 2025.
Which rules am I referring to? Let me outline them briefly.
According to the National Insurance Act, an employee on sick leave must attempt some form of activity “as early as possible.” The first possible opportunity is the first day of absence. This means that an employee who calls in sick on a Wednesday is obligated to report to work on Thursday for adapted tasks or a work trial.
As a general rule, sick leave follow-up should not take place from home or at the doctor’s office, but at the workplace. How many employers actually adhere to this?
A Work Trial is About Testing
What kind of activity can an employee on sick leave be assigned on the first day of absence? The answer is any work that can be considered valuable to the employer. This is explicitly stated in the National Insurance Act and NAV’s guidelines. A middle manager on sick leave, for example, may be assigned to the reception desk or tasked with organizing the storage room.
The usual limitations on an employer’s management prerogative do not apply when following up on employees on sick leave. The whole point is that the middle manager is unable to perform their usual tasks and must therefore be tested in other types of work.
How much recovery can employers expect from an employee who reports in sick? At least half to a full workday per week, even in cases of 100% sick leave, according to NAV’s guidelines: “It is assumed that the vast majority of employees on sick leave, except those who have clearly lost all ability to work, will be able to utilize at least 10–20% of their work capacity in the initial phase when the employer provides accommodation for this.” How many employers make such demands?
The Doctor is Merely an Expert Consultant
In cases of partial sick leave (e.g., 50%), the employee can still be required to be present at work 100% of the time but “operate at half capacity,” meaning they perform 50% of their regular tasks. NAV’s guidelines state this explicitly: “… for example, where the employee spends the entire day performing 50% of their work tasks.”
But aren’t employers obligated to comply with medical certificates? The answer is no. The doctor issuing the sick leave certificate does not have decision-making authority but serves only as an expert consultant with the right to provide an opinion. NAV’s guidelines make this clear: “The employer and NAV have the decision-making authority in sick pay cases. The patient (member) submits the claim and may have the right to sick pay.” How many employers take this into account?
The Obligation to Cooperate
If an employer wants to test a 100% sick-listed employee in work activities from day one and for a full week, there is only one exception: “compelling medical reasons.” General medical reasons alone are not sufficient.
For employees who do not cooperate in testing their ability to work, the employer may, for the time being, stop the payment (or advance payment) of sick pay. This follows directly from Section 8-8 of the National Insurance Act.
If the employer has made an incorrect decision and does not actually have the right to withhold sick pay, the employee can file a complaint with NAV, which will then pay the sick pay and demand reimbursement from the employer. But beyond that, such an error has no major consequences for the employer.
Time to Follow the Rules
Would absenteeism rates decrease if more employers actually followed the National Insurance Act’s sick leave regulations?
Yes, undoubtedly – and this is supported by research. Just read Report 2018:20 from the FAFO Research Foundation. I am sure that LO leader Peggy Hessen Følsvik also supports this research. After all, she is currently FAFO’s chair of the board.
Instead of debating whether the rules should be changed, the social partners should rather encourage their members – both employers and employees – to use and follow the rules that are currently in place.
We certainly have generous sick pay rights, but these must be seen in relation to fairly clear obligations. So far, the focus has perhaps been too much on the former and too little on the latter. It may be time to change that.