New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Sweden

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The Swedish government has not introduced any statutory laws regarding remote working, only recommendations. Thus, it is generally the employer who decides if employees should work from home or at the office. Under the currently applicable recommendations from 23 December 2021, the Swedish Public Health Agency recommends that employers facilitate employees working from home.

Last updated on 24/01/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Sweden

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Pursuant to the GDPR, personal data should, inter alia, be processed in a manner that ensures appropriate security and confidentiality for the processing of that data, including by preventing unauthorised access to or use of personal data. For natural reasons, there may be additional challenges associated with this obligation when employees are working remotely, including an increased risk of personal data breaches when employees are working from home. The Swedish Authority for Privacy Protection mentions in its Privacy Protection Report of 2020 the increase in employees working from home as a result of the covid-19 pandemic, and the increased use of cloud service providers. The Authority highlights that data in cloud services is often transferred to countries outside the EU/EEA, and especially to the US. As a result of the Schrems II ruling in 2020, the use of, eg, cloud service providers that transfer data to  such jurisdictions (eg, in connection with IT maintenance) is problematic and may need to be addressed in relation to remote working.   

In light of the above, it is important as an employer to consider what measures are necessary in terms of IT security when working from home (eg, instructions to employees).

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Sweden

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From a privacy perspective, employers must consider the GDPR and other privacy-related legislation. The GDPR states, inter alia, that the processing of personal data must be adequate, relevant and limited to what is necessary concerning the purposes for which they are processed (ie, the data minimisation principle). This means that the employer’s monitoring of employees cannot be too intrusive – it must be proportionate for the purpose. Furthermore, employers must be able to demonstrate that the purpose of the processing cannot be fulfilled by other, less-intrusive, means. Employers must also adhere to other GDPR requirements, eg, providing employees with information about the data processing in advance. Further, employers must always act in accordance with good practices in the Swedish labour market.

When it comes to employees’ use of email and the internet, the Swedish Authority for Privacy Protection recommends that employers have guidelines for internet use and e-mail. The guidelines should clearly state what type of private use is permitted, and also when the employer may consider controlling employees’ internet or e-mail use. Depending on the situation, it may be lawful to carry out inspections of an employee’s online usage. If there is a concrete suspicion that an employee is acting in breach of his or her employment contract, it may be lawful to monitor that employee, subject to complying with the GDPR and other privacy legislation. Employees must be informed about inspections or monitoring that may take place.

In terms of time tracking, the Swedish Working Hours Act also applies to remote working, meaning that the same limits on overtime and provisions on minimum daily rest periods must be observed. In some circumstances, however, such as when the work is performed without employer supervision or control, the Working Hours Act may not apply. There are no general guidelines on when the exemption is applicable, but it should be applied restrictively and is rarely applicable in the case of remote working. Employers should therefore engage in dialogue with employees on their working time to ensure compliance with the Working Hours Act.

Last updated on 24/01/2022

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Sweden

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There is no legal obligation per se to provide work equipment; however, employers are responsible for the overall work environment, irrespective of whether the work is performed at the office or remotely from the employee’s home. This means that the employer must assess the employee’s homeworking environment to identify any health and safety risks. This also includes a responsibility for the psychosocial environment. If such an assessment was to show that, for example, the lighting or the seating arrangements for an employee would pose a risk for ill-health, the employer would be required to take measures to prevent this risk. Such measures could include offering employees work equipment such as a lamp or office chair. However, the need should be assessed on a case-by-case basis.

When it comes to computers and other tools necessary to perform the work, it is common for employers to provide this to employees.

In terms of reimbursing costs such as internet when working from home, there are no legal requirements and it is therefore subject to agreement with the employee. However, it is not uncommon that the employer pays part of the internet fee for employees that are permanently home-based, but it is not required.

Last updated on 24/01/2022

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Sweden

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Labour law

Pursuant to the Rome I regulation, the employment relationship will, as a main rule, be governed by the law of the country in which the employee habitually carries out his or her work. If the employee does not habitually carry out the work in one country, the contract is governed by the law of the country of the place of business of the employer. However, if it appears from the circumstances as a whole that the work is more closely connected with another country, the law of that other country shall apply. Notwithstanding the above, it is possible for the employer and employee to agree on which country’s legislation should apply, provided another law does not deprive the employee of the protections that would have been guaranteed by statutory law under the applicable legislation, as per the Rome 1 regulation.

In light of this, cross-border remote-working arrangements may open up questions on applicable legislation. It is advisable to check if there are any such issues before allowing such arrangements. In addition, there may also be tax consequences for both the employer and employee. Furthermore,  a cross-border remote-working arrangement might also mean risk from an insurance perspective. Therefore, employers should ensure their insurance covers employees working remotely from another country.

Social security and tax law

Employers who have employees working remotely from another country should be cautious about the tax effects such an arrangement may trigger. An employee working remotely (eg, from home) in Sweden may trigger a taxable permanent establishment in Sweden, which has the effect that a part of the company’s income would have to be taxed in Sweden. If a permanent establishment is triggered, the company would have to register with the Swedish Tax Agency for corporate income tax purposes. It should also be noted that the Tax Agency can look back up to six calendar years for a reassessment of a permanent establishment. It is thereby possible for a foreign company to carry out activities in Sweden for a long time without being taxed in Sweden and having a full reassessment decision from the Tax Agency for previous years.

Furthermore, the company may also have to register for payroll purposes in Sweden, if the employee’s income would be subject to Swedish income tax and Swedish social security contributions. Income tax and social security contributions are to be reported and paid monthly. However, if the employer does not have a permanent establishment in Sweden, and provided that certain criteria are met, the employee may self-report and pay the social security contributions (but not the tax). Even if such an arrangement can be applied, the employer must still register with the Swedish Tax Agency for filing a statement of earnings and tax deductions and to report and pay income tax on the salary paid to the employee.

If a Swedish company has employees working remotely in another country, the employer may become liable to pay income social security fees and taxes abroad on any income that would be attributable to the work undertaken in that country, and may also have to comply with the registration and reporting requirements of that country.

In international cross-border working situations, taxation is not only regulated under domestic law but also double taxation treaties. As these rules reflect the special situation between two states and are the result of negotiations between them, it follows that these rules vary from one double taxation treaty to another. Regarding social security, domestic law, EU community regulations and international social security conventions must be taken into account when assessing which country the employee belongs to and what social security contributions are to be paid in that country. Normally, an A1 certificate would have to be obtained for social security purposes; such certificate states which country’s social security insurance system that the employee belongs to.

It is recommended to seek guidance from an independent tax counsel regarding international cross-border work situations to assess the tax consequences in each case.

Last updated on 24/01/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Sweden

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The employer is not entitled to unilaterally reduce the employee’s salary or other employment benefits unless provided for in the individual employment agreement or a collective bargaining agreement. Hence, such a measure would require an agreement between the employer and the employee. If the employer implements unilateral salary deductions, the employer may be held liable to pay damages for a breach of contract. Moreover, there is a risk that the employee can claim that the deductions imply an unlawful termination of employment, which could make the employer liable to pay both compensation for losses sustained (capped at 32 months’ salary) as well as general damages.

Last updated on 24/01/2022

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Sweden

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There are no statutory regulations regarding vaccination requirements in Sweden. However, an employer cannot compel an employee to get vaccinated, and as a main rule, a refusal by an employee to get vaccinated does not constitute a basis for termination of employment. A requirement by an employer for employees to get vaccinated has not been tried legally, but the possibility to demand an employee to get vaccinated is likely very limited. That being said, pursuant to the Work Environment Act, employers must take all necessary measures to avoid risks of injury or ill-health at work. If no other measures than the vaccine are available to ensure a safe environment (eg, other protective measures such as social distancing, wearing face masks or cleaning are deemed inadequate), and if the business cannot eliminate the risk of infection through other protective measures such as working from home, it may be justified to require employees are vaccinated to work from the office. A refusal to get vaccinated by the employee may in such a case have consequences for their employment; for example, the employer may be entitled to move the employee to another position. Such measures shall only be taken if there are special reasons for doing so, based on the needs of the business. The nature of the business will be of importance when making such a legal assessment; for example, if the nature of the work performed justifies such a requirement (health workers in certain medical fields). The legal assessment must thus be made based on the circumstances in each case.

It is important to note that a refusal does not automatically mean that the employer may terminate the employee. The employer must observe the formal rules in the Swedish Employment Protection Act and ensure that there is “just cause” for termination. This would, inter alia, include an obligation to review and offer the individual any free positions within the company the employee is qualified for (and for which the employee doesn’t need to be vaccinated for work environment reasons) before termination of employment can come into question and the threshold for just cause for termination may be reached. 

Last updated on 24/01/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Sweden

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Requiring employees to be vaccinated in the office may render discrimination claims from employees unable or unwilling to take the vaccine due to characteristics protected in the Swedish Discrimination Act. As mentioned above, an employer cannot compel an employee to get vaccinated. However, the employer must take all necessary measures to avoid risks of injury or ill health at work according to the Work Environment Act. If no other measures than a vaccine are available to ensure a safe environment (where other protective measures such as face masks, safe distancing or similar are deemed inadequate), it could be argued that it is justifiable to ask employees to be vaccinated to work from the office or continue homeworking until the rate of infection has gone down, if this is necessary and proportionate to ensure a safe working environment.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Sweden

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There are no such requirements for any sector. There are currently no recommendations from relevant Swedish authorities that employers should treat unvaccinated employees differently to vaccinated employees.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Sweden

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Medical and vaccination information relating to an individual constitute health data, which is considered a special category of personal data under article 9 of the General Data Protection Regulation (GDPR). The main rule is that the processing of such data is prohibited, unless there is an applicable exemption to process the data (for example, that processing is necessary for the employer to fulfil their obligations and exercise their special rights within labour law and in the areas of social security and social protection). From a general employment law perspective, however, it does not appear necessary for the employer to register or draw up lists of employees’ immunity in any way to fulfil an obligation or right within labour law and in the areas of social security and social protection.

Article 9.2 (i) GDPR offers another exemption to the general prohibition to process special category data: it may be lawful if the processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and medicinal products or medical devices. However, such processing must be based on EU or member state law, which normally does not apply for “ordinary” businesses.

To summarise, the opportunity for employers to lawfully process employee medical data and data on vaccination under the GDPR is very limited.

Last updated on 24/01/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Sweden

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Under Swedish law, employers have overall responsibility for the employee’s work environment and must take all necessary measures to prevent employees from being exposed to risks of injury or ill-health. This responsibility lies with the employer irrespective of whether the work is performed at the office or remotely. Employees, however, also have an obligation to participate in work environment management and should participate in the implementation of any measures necessary to achieve a good working environment, as well as draw attention to potential safety risks. A close dialogue between the employer and employees is important, and often even more so where the work is carried out remotely.

The employer’s management of the working environment should be conducted systematically, ensuring that it fulfils applicable rules and regulations for a good work environment. This systematic management should include risk assessments of the business, active measures, and follow-ups in respect of the work environment. Furthermore, employers must, as a main rule, implement adequate action plans and policies to ensure a safe working environment. In companies with many remote workers, it is generally a good idea to set up clear guidelines for remote-working routines (eg, regarding support, communication and physical equipment).

Last updated on 24/01/2022

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Sweden

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Employers’ legal responsibility for their work environment, as such, has not been impacted by the pandemic. However, in practice, employers have been forced to quickly adapt to the new situation and face new challenges due to the pandemic. As many employers have not had any routines regarding the work environment beyond the physical workplace, it has been important to assess what risks there are concerning employees physical and mental health and how they can be minimised.

Last updated on 24/01/2022

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Sweden

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An employer’s legal responsibility is the same irrespective of whether the work is to be performed primarily from home or remotely. However, an employer’s ability to control and assess an employee’s working situation is naturally more limited for remote workers and places great demands on the employer’s systematic management of the work environment. Risk assessments must be conducted regularly and the employer must foresee what risks can arise in different situations. Furthermore, the dialogue between an employer and employee is important so that the employer is informed of any issues regarding the work environment.  

Last updated on 24/01/2022

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Sweden

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An employer’s systematic management shall include both psychological and social circumstances that have an impact on the work environment. This also means a general obligation to regularly assess working conditions and to be attentive to employees’ wellbeing. Managers and workers with supervisory functions shall be aware, in the day-to-day business, of warning signals indicating mental health issues, such as increased absences from work, silence and fatigue at work or high activity on email or the telephone outside working hours.

Last updated on 24/01/2022

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Sweden

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In April 2020, new legislation enabled employers affected by temporary and serious financial difficulties that could not reasonably have been foreseen or avoided (eg, due to the coronavirus situation) to reduce their employees' working hours and receive financial support from the Swedish government. The government covered three-quarters of the cost for the reduced working hours and the employer and employee shared the cost of the remaining quarter. For employers to receive support, the employer must have made use of other available measures for reducing labour costs, such as terminations of personnel not permanently employed and not regarded as being critical to business operations. The  possibility of receiving financial support under this legislation ceased to exist in September 2021.

New legislation on financial support has been proposed to apply from December 2021 to March 2022 for employers that have lost at least 30% in revenue. Affected employers will be able to receive support of 70% or 90 % (depending on the size of the company) of their fixed costs, such as salaries and rent, that they are unable to cover.  

The rules for termination of employment are the same regardless of the covid-19 situation. To terminate an “employment until further notice” under Swedish law, "just cause" is required. Just cause can either be related to personal reasons (eg, poor performance and misconduct) or redundancy. It is significantly more difficult to terminate an employee due to personal reasons (reasons relating to the individual employee) than due to redundancy. In general, termination due to personal reasons is considered a last resort by the courts. Redundancy on the other hand is deemed, as a main rule, to constitute just cause for termination of employment and there is no general obligation under the Employment Protection Act (EPA) to justify the redundancy (eg, with financial information or similar). The employer, however, must observe material and formal rules laid down by the EPA concerning redundancy terminations (as well as termination due to personal reasons).

Last updated on 24/01/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Sweden

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In Sweden, the same rules and regulations regarding employment protection also apply to remote workers. Therefore, few measures have been taken by unions or worker associations in this regard. However, worker associations and unions have actively encouraged employers to allow remote working to protect workers from covid-19 and create a safer working environment.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Sweden

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If an employer is bound by a collective bargaining agreement, the employer, as a main rule, should request and conclude trade union negotiations before implementing an obligation to work remotely. Trade union representatives can present their views on this arrangement in the negotiation. However, a trade union cannot alter or veto the employer's homeworking arrangements (assuming that the collective bargaining agreement does not prohibit remote working). That being said, a trade union may take action if there are deficiencies in the working environment for employees working from home.

If the home-working arrangement is voluntary for employees, there is generally no obligation to perform trade union negotiations. The trade union, however, has a right to be informed about any changes relevant for employees under section 19 of the Swedish Co-Determination (in the workplace) Act.

If there is no collective bargaining agreement in place for the employer, there is no obligation to request trade union negotiations. Depending on the individual circumstances (eg, if it is a permanent solution and if the employment agreement allows for such a change of workplace) an agreement with the individual employee may be required for the employer to impose an obligation to work remotely on employees.

Last updated on 21/09/2021