BRIEF GUIDANCE FOR EMPLOYERS DURING COVID-19 PANDEMIC AFTER THE ADOPTION OF THE STATE OF EMERGENCY ACT
25 March 2020
As a follow-up to the brief employer guidance published last week, below you will find analysis of the amendments regarding employment relationships introduced by the State of Emergency Act which was adopted on March 23, 2020 in relation to the state of emergency declared by decision of the National Assembly of March 13, 2020. The newly adopted Act introduces amendments regarding remote work and accordingly amends the Labor Code to address some of the key challenges faced by employers during the COVID-19 pandemic.
Do employers have the right to order their employees to work from home based on the state of emergency declared in the country?
The amendments to the Labor Code set a legislative framework with regards the remote work during the declared state of emergency. Prior to the amendment, working remotely (also known as “home office” and “telework”) was a possible option only in case it was specifically agreed upon in the employment agreement and with the employee’s explicit consent. According to the adopted amendment, the employer may now unilaterally order its employees to work from home during the state of emergency. This may be executed by an order changing the workplace. In practice, this means that signing annexes to employment agreements would no longer be required for the purposes of documenting the employer-employee relationships.
It is important to note that the Act specifies a minimum regulatory content of the employer’s order for assigning remote work – issues related to work, technical and other equipment at the workplace, duties and maintenance costs, different terms and conditions regarding supply, replacement and maintenance of equipment, as well as provisions regulating the acquisition of certain equipment items by the employee while remote working remotely.
Are employees entitled to “self-quarantine” at home?
The latest amendments to the Labour Code provide for broader rights, including “self-quarantine”, for certain categories of employees such as: pregnant employees, mothers or single fathers or adoptive parents of a child up to the age of 12 or of a disabled child, regardless of such child’s age, vocationally rehabilitated employees, persons with permanently reduced work capacity of 50% and above, etc. These persons have the right, at their discretion, not to go to work, by requesting to use their paid or unpaid leave, and the employer shall be obliged to allow it under the declared state of emergency. The whole time during which an employee uses his/her leave, either paid or unpaid, as descried above, shall be considered length of service.
What can employers do in a situation of work reduction or complete cease of operations?
The Act regulates several new options for employers to cope with the situation:
- Employers are now entitled to unilaterally introduce part-time work for the entire or a part of the state of emergency period – the new paragraph amends the existing regulation to the effect that in the event of a dispute employers will not be required to prove reduction in the volume of work, but will instead be allowed to directly refer to and rely on the objectively existing state of emergency in the country as grounds for introducing part-time work. Moreover, employers are not obliged to conduct consultations with representatives of the trade unions or employees’ representatives prior to introducing the part-time work. The three-month per calendar year restriction for the introduction of part-time work is not applicable under the state of emergency circumstances – as it has already been emphases above, such measure can be introduced for the entire state of emergency period. The restriction regarding the duration of the part-time work, however, remains valid, namely it may not be less than half of the statutory duration, for example, a minimum of 4 hours with normal working time of 8 hours per day. When introducing part-time work, employers shall owe lower remuneration proportionate to the hours worked.
- Employers have the right to suspend the activities of the entire enterprise, part of it or of individual employees for the state of emergency period by issuing an order. Suspension of work for a certain period of time with an employer’s act is a new concept which was not previously present in employment legislation – until now, the law has regulated only the factual situation of work suspension. A company may suspend work if cease of operations during the state of emergency period is more financially advantageous for the company. Suspension of work, however, does not exempt employers fromtheir obligation to pay renumerations – they are due and payable in their full amount. Additionally, for the time of suspension, the employer may grant the entire paid leave to employees without their consent. Possible scenarios to consider include introducing flexible working hours, declaring stoppage, closing down the whole enterprise or part of it, reducing permanent positions or dismissing employees on the basis of work reduction or suspension of more than 15 working days.
Do employers have the right not to pay renumeration to their employees due to the state of emergency in the country?
Employers still have no right not to pay remuneration during the state of emergency, even after the adopted amendments. As already noted above, even if employers exercise their right to suspend activities of the entire enterprise, of particular units or of individual employees, employers still owe the full remuneration to employees for the duration of the suspension. If the employers’ activity falls within the economic sectors for which a prohibition or restriction of activity during the state of emergency period has been imposed, they could benefit from the proposed business support measures. The employers affected by the circumstances will be entitled to a compensation in the form of a financial aid in the amount of 60% of the renumeration of their employees, but for no more than three months, meaning that they will pay 40% of the employees’ remuneration using their own funds and 60% using funds provided by the of the National Social Security Institute. The criteria to be met by employers in order to be eligible for such compensation are to be determined by an act issued by the Council of Ministers.
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