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Sept. 29—A recent ruling (107/2015) by Denmark's Equal Opportunities Board shows that uncertainty still exists about when an illness can be classified as a disability, Ann Marie Willemoes Jorgensen, a legal adviser at the Confederation of Danish Employers (DA) specializing in European Union and labor law, told Bloomberg BNA, adding that the decision appears to follow recent EU and Danish case law.
The case concerned a physiotherapist who had taken leave of absence from a municipal fitness center because of depression and stress. The therapist was laid off following a series of meetings attended by her employer and union representatives where it emerged that she would be unable to meet the reduced workload proposed by her employer. The board subsequently rejected the employee's claim that her illness was of a long-term nature and should be classified as a disability.
A medical evaluation found that the employee was suffering from a stress disorder and borderline depression, which led to her taking 173 full sick days and 14 partial sick days during a 12-month period. Following an assessment of the medical evidence, the employer proposed that the therapist work a reduced schedule of 14 hours per week. Citing medical advice, the employee said she would be unable to meet the new work requirement and requested that her hours be reduced further and that she be guaranteed work in a quiet, stress-free environment. The employee was dismissed on Sept. 11, 2013.
In the subsequent complaint, the therapist's trade union argued that her long-term illness met the legal definition of a disability. Under the Danish Discrimination Act (1349/2008), disability is defined as “a physical, mental or intellectual functional impairment” that must be compensated for in order for a person to function on an equal basis with those in similar situations. The employer had failed in its legal duty to adapt the workplace to suit the needs of a disabled employee, the employee and the union claimed.
While accepting that the employee's illness had significantly affected her ability to work for a lengthy period, the board found that her medical condition did not necessarily mean that she would be unable to fully and effectively carry out her work on an equal basis with her colleagues over the long term. She could not therefore be legally defined as disabled, and discrimination on the grounds of disability had not been demonstrated.
Jorgensen noted that in its ruling the board cited the European Court of Justice preliminary ruling in the joined cases of Ring and Skouboe Werges (C-335/2011 and C-337/2011), in which the ECJ held that a condition caused by a medically diagnosed illness can be defined as a disability if it entails a “limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers and [if] the limitation is a long-term one.”
Applying the ECJ definition, the board determined that the physiotherapist's illness was not “long term.”
“In this case, the board held that illness due to depression and chronic fatigue did not have such a scope and character to limit the employee from fully and effectively carrying out her work over the long term,” Jorgensen said. “Due to the ruling's brevity, it is difficult to interpret the grounds of the verdict. Among other factors, emphasis is most likely to have been placed on the relatively short duration of the illness and the fact that the employee was reportedly fit for duty only a short while after the termination. This confirms the view in the ECJ ruling that short-term illness cannot constitute a disability.”
“Danish employers will no doubt still be the subject of litigation in the disability field in the future,” Jorgensen said, “not because they are unwilling to employ or take measures to retain qualified employees with disabilities, but due to the fact that the boundary between disability and illness and the extent of the appropriate measures that should be taken remain legally unclear.”
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For more information on Danish HR law and regulation, see the Denmark primer.
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