The employer's duty to adapt - what is it?

Employers often experience that employees for various reasons cannot work as normal. Does the employer have to make arrangements for them? What and how much must the employer do?

The employer’s duty to adapt

The employer must ensure a safe working environment for its employees. For employees who have had their ability to work reduced due to an accident, illness, fatigue or the like, the employer has a special duty to facilitate. The employer shall "as far as possible" implement measures to enable the employee to retain or be given suitable work, cf. the Working Environment Act § 4-6.

The duty to adapt applies to all employees with reduced working capacity, regardless of whether the underlying cause is related to the job or something else.

What must the employer do?

Discussion and attempts to adapt the work are an important part of the employer's follow-up of an employee on sick leave. Unless it is clearly unnecessary, the employer must work with the employee to make a plan for the employee to return to work. The plan must be completed no later than when the employee has been away from work for four weeks, and it must contain the following:

• An assessment of the employee's work tasks and work ability
• Relevant measures under the auspices of the employer
• Current measures with assistance from the Norwegian Labour and Welfare Administration (NAV)
• Plan for further follow-up

If the employee is completely absent from work, the employer must convene an employee for a dialogue meeting no later than after seven weeks. When the sick leave lasts for six months or more, NAV convenes a new dialogue meeting. The intention of the dialogue meetings is to find good solutions and adaptation measures so that the employee returns to work again.

It is important that the employer and employee regularly work with and have a dialogue about the follow-up plan and possible adaptation measures, also outside and in addition to the dialogue meetings.

The employer can never ask the employee for a diagnosis. It can therefore often be useful that the doctor who has prescribed the sick leave participates in the dialogue meetings because he / she can often help to assess / propose adaptation measures that may be relevant or feasible.

How much must the employer do?

The employer's duty to adapt is, as far as possible, to facilitate that the employee can continue in the position he or she holds or get other work in the company. In the Widerøe judgment from February 2022 (see our article on the judgment here), the Supreme Court has confirmed that the duty to adapt extends far, but how far is it really?

Often, simple adaptation measures will be enough to get the employee back to work. Reduction or various adjustments in working hours and adaptation of equipment often have a great effect. For an employee who struggles with a sore back, for example, the use of a raise-lower desk or fewer heavy lifts may be all that is needed.

Other times, though, this is not enough, and employers need to look at what else they can do. For example, may it be relevant to make temporary or permanent changes in the work tasks, and are there other vacant tasks in other departments? Can a home office be a good solution for a few days?

The possibilities are many, and it is important to have a good and open dialogue with the employee. The employer must remember to look at the entire company because the duty to adapt does not only apply to the position that the employee has, but can also include i.e., tasks that have become vacant in another department because an employee there has left or is on leave.

It is also useful to encourage the employee to make suggestions for adaptation, and also to ask if there is anything else in the company that he / she thinks might be relevant to try. Sometimes it can i.e.,  be useful that the employee does not work with matters that have short deadlines or that require cooperation with others, but rather simpler tasks that are not affected by whether the person suddenly disappears for a period of time.

The duty to adapt also has some limitations. For example, employees may not demand to take over positions or work held by other employees. The employer must also not create a completely new position for the employee to return to work. At the same time, the Widerøe judgment shows a gray zone when it comes to the obligation to create positions.

The judgment concerned, in short, the question of whether the employer on a permanent basis had to divide the current 100% position into two 50% positions in order to allow the employee to keep the job. The court answered no to this question in the specific case because the employer among other things managed to document that this brought with it major challenges and problems.

But in some cases, employers may have to make such a division as part of the duty to adapt. An example could be if the division is practically possible, and the employee's type of position already exists as a part-time position in the employer's business.

In summary, the employer must try quite a lot, and go quite a long way, in arranging work for an employee on sick leave. It is important that the employer documents all proposals and attempts at adaptation measures that have been discussed and tried, and that if a proposed measure does not seem possible, what problems and challenges make the employer say no to it.