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Questions and answers: Coronavirus and obligation to work in the healthcare sector
International conventions prohibiting forced labour do not apply to any work or service exacted in the event of calamity or threatened calamity, such as an epidemic, that endangers the existence or wellbeing of the population. The emergency conditions now prevailing in Finland constitute such a situation.
Legislation that intervenes in the rights enshrined in the Constitution must be assessed from the perspective of the general conditions for restricting fundamental rights, including the acceptability of the purpose of the legislation and its proportionality.
The objective with introducing the obligation to work in the healthcare sector is to secure a sufficient number of healthcare personnel that is necessary to protect the life and health of the population during the coronavirus epidemic. The aim is to ensure the adequacy of healthcare personnel so that personnel shortage caused by the coronavirus epidemic does not endanger human lives.
From the perspective of the principle of proportionality, it is also essential that the proposed provisions remain in force only for a short period of time. It has been assessed that there are acceptable reasons for restricting fundamental rights temporarily in the current situation.
The obligation to work in the healthcare sector can be introduced in emergency conditions caused by major accidents and widespread hazardous communicable diseases.
Under the Emergency Powers Act, the employment authority (TE office) has the power to issue an order to work to a person covered by the obligation to work. A person who is covered by the obligation to work in the healthcare sector and has been issued with an order to work must carry out necessary work in the healthcare sector. A work order may be issued for a maximum of two weeks at a time, and it may be renewed once.
Provisions on the obligation to work are laid down in the Emergency Powers Act, and they can be activated by issuing a decree on the use of powers under the Emergency Powers Act.
The Emergency Powers Act lays down provisions both on a general obligation to work and on an obligation to work in the healthcare sector. The general obligation to work applies to people working in all sectors, and the obligation to work in the healthcare sector now introduced because of the coronavirus epidemic applies to persons with training in the field of healthcare.
The Emergency Powers Act contains provisions on restrictions on issuing an order to work and on matters to be taken into account in this context. An order to work is always issued based on individual discretion and in consultation with the person concerned.
An order to work must not be issued, for example, to a person who cannot leave his or her home for the time required for the work because he or she needs to care for a child or another person in need of continuous care or, as a rule, to a person in such an employment or public service relationship in which he or she is absolutely required to continue working also under the emergency conditions.
Before issuing a person with an order to work, the TE office must determine the person’s possibilities to accept the work. Factors affecting a person’s possibilities to accept work include the person’s age, health, skills and knowledge, and other similar limitations related to the task in question. As a rule, such persons covered by the obligation to work who are near the upper age limit specified in the law will not be issued with an order to work during the coronavirus pandemic, because we know that older people and those with underlying health conditions are at a higher risk of serious illness from the coronavirus.
An order to work issued by a TE office is subject to appeal. However, under the Emergency Powers Act, an administrative decision (order to work) must be complied with immediately irrespective of appeal, unless otherwise ordered by the relevant authority (TE office).
An order to work can be issued for a maximum of two weeks at a time, and it may be renewed once. Thus, the same person can be obliged to work for a maximum of one month.
A person who has been issued with an order to work has an order-based employment relationship with the employer under whose management and supervision a TE office has ordered him or her to work.
The issue of an order to work does not require the consent of the person concerned. A work order can be issued for a maximum of two weeks at a time, and it may be renewed once.
The person will work for the employer under the management and supervision of the employer and be paid for the work, but there is no employment relationship referred to in the Employment Contracts Act between the person and the employer. Instead, there is an order-based employment relationship, which is very similar to an employment relationship.
- The person obliged to work will be paid for the work.
- The terms and conditions of the order-based employment relationship are determined in accordance with the relevant collective agreement binding on the employer. In the absence of a binding collective agreement, the person obliged to work shall be paid wages that are proportionate to the duties assigned to him or her.
- The provisions and agreements governing the employment or public service relationship and work to be carried out based on these also apply to work to be carried out on the basis of an order-based employment relationship, as appropriate.
- For example, the Occupational Safety and Health Act applies to persons obliged to work similarly as it does to the employer's own employees working alongside the persons obliged to work.
An order to work is issued by the employment authority, i.e. an employment and economic development office (TE office), when a healthcare provider in need of personnel has first approved a given person to work for it. Healthcare units will determine their personnel needs that cannot be met in any other way and report them to the TE office. The primary ways of ensuring sufficient numbers of staff are to purchase services and recruit additional personnel in the normal way and to apply some of the other exceptional measures already introduced under the Emergency Powers Act.
As a rule, the obligation to work in the healthcare sector applies to healthcare professionals and medical, pharmacy and healthcare students who have progressed far enough in their studies. To chart the number of persons covered by the obligation to work, the authorities will use the Terhikki Register, which is a nationwide register containing information on Finnish healthcare professionals maintained by the National Supervisory Authority for Welfare and Health.
The Emergency Powers Act contains separate provisions on restrictions on issuing orders to work and on other matters to be taken into account when issuing these orders. An order to work is always issued to a person based on individual discretion.
The Ministry of Economic Affairs and Employment will establish a work obligation register, which will be built around information extracted from the Terhikki Register. Terhikki contains information on Finnish healthcare professionals and is maintained by the National Supervisory Authority for Welfare and Health. More detailed guidelines concerning persons covered by the obligation to work will be prepared in cooperation between the relevant ministries and agencies in their administrative branches.
TE offices will set up a procedure for persons covered by the obligation to work to report to the offices. They will also issue the necessary orders to persons who the healthcare units need and in respect of whom there is assessed to be no limitations or other obstacles referred to in the Emergency Powers Act to issuing an order.
An order to work issued by a TE office is subject to appeal in the same manner as any other administrative decision. An order to work must, however, be complied with immediately irrespective of appeal, unless otherwise ordered by the TE office.
A person obliged to work has the right to return to his or her previous work.
The person's employment or public service relationship in which he or she was serving immediately before the start of the obligation to work will continue for the duration of the order-based employment relationship.
The period that the person has worked in an order-based employment relationship is considered equivalent to work when calculating benefits that are based on the work requirement, other than those relating to pay and earning of annual holiday.
The introduction of the obligation to work is the last resort in an exceptional situation where the adequacy of personnel resources in the healthcare sector must be secured.
The primary measures are the ones that have already been introduced under the Emergency Powers Act, in other words the flexibility in the time limits for the provision of non-urgent care, the derogations from the provisions of the Working Hours Act and the Annual Holidays Act, the arrangements within and between healthcare units, the voluntary recruitment of additional personnel, and the use of purchased services.
If the use of these measures is not possible or they are found to be inadequate, the sufficiency of personnel resources in the healthcare sector can be secured by introducing the obligation to work. The obligation to work can be introduced to safeguard the resources necessary for the performance of any of the tasks in the healthcare sector. Work orders can be issued to ensure the availability of personnel in the care of patients affected by the pandemic, in tasks from which personnel has been transferred to more critical tasks, and in any other place that is experiencing difficulties in providing adequate health services because staff has fallen ill or the number of patients has increased uncontrollably.