COVID-19 Pandemic: Brief Guidance for Employers
13 March 2020
The human and economic impacts on businesses resulting from the declared COVID-19 pandemic have been significant and will only grow posing complex challenges to employers in various ways. The following brief guidance addresses some of the key legal implications and issues Bulgarian employers should consider in this public health emergency situation. This article reflects the situation as of March 13, 2020.
Which workplace virus protection measures are mandatory for employers?
In general, there are no mandatory measures envisaged in the labour legislation. In view of the complicated epidemic situation, however, on March 13, 2020 the Minister of Health ordered the following mandatory measures for employers: “All employers, depending on the specifics of the respective work activity and wherever possible, shall introduce a remote form of work for their employees. Where this is not possible, employers shall tighten up the preventive anti-epidemic measures in the workplace, including: filtering, disinfection and ventilation, shall brief and educate employees on personal hygiene and shall not allow employees or visitors with symptoms of acute infectious diseases.”
Other than the above, in late February, the World Health Organization (WHO) published recommended strategies for employers to prevent the spread of COVID-19, which can be found in Bulgarian language on the website of the Ministry of Health (MoH). Most of the WHO measures can be implemented by any employer and include conducting an information campaign on the virus, maintaining high workplace hygiene standards, and others.
In addition to the mandatory measures imposed by the MoH, as well as any potential follow-up emergency measures which competent public authorities may implement, the Bulgarian labour legislation imposes certain general obligations on employers for ensuring healthy and safe working conditions and for taking measures to prevent and reduce spread of common diseases (including COVID -19 – the disease caused by the novel coronavirus). It is at the employer’s discretion to decide how exactly to fulfill these obligations taking into consideration the specifics of the activity, as well as the organisation of work at the undertaking.
Do employers have the right to order their employees to work from home under the state of emergency declared in the country?
Under the Bulgarian legislation employers may not order employees to work from home even in epidemic situations. Working remotely (also known as “home office”, “telework”, work from home) is regulated in the Labor Code and is defined as voluntary, therefore the employers may not on their own order work from home to employees whose employment contracts do not contain the relevant clauses. This is related to the need to regulate the conditions, rights and obligations when working remotely – in particular with regard to the safety of work performed at the employee’s home, as well as with regard to the procedure for assigning and reporting remote work, the content, volume, results achieved, and other specifics of the work, which are related to reporting the completed tasks.
In view of the above and in observance of the order issued by the Ministry of Health, employers are advised to introduce remote work mode by amending the employment contracts of their employees.
Do employers have the right to apply measures in order to find out whether an employee is ill?
There are no legal grounds for such measures in the current legislation; at the same time, the Bulgarian Commission of Personal Data Protection has not yet come up with an explicit opinion on this matter. Health authorities or other competent authorities may introduce such measures with clear instructions in emergency situations, but such have not been currently announced. For certain industries, such as the food industry, such measures are considered standard and mandatory.
In this context, it is interesting to note that competent authorities in France and Italy have issued guidelines stating that measures such as mandatory temperature measurement and collecting medical questionnaires and files from employees and visitors are considered inadmissible in view of the applicable data protection rules. According to both data protection supervisory authorities, employers should leave the collection and investigation of COVID-19 symptom information to the competent health authorities. Employees, however, have the general obligation to take care of their health and safety as well as the health and safety of others. Employers therefore could encourage their employees to regularly inform them in case of any symptoms of illness.
Do employers have the right not to pay renumeration to their employees due to the state of emergency in the country?
There are no legal grounds in the labour legislation for employers to rely on in order not to pay renumeration even in a situation where employees may not go to work.
What can employers do in a situation of work reduction or complete work stoppage?
Employers may exercise their powers in case of a stoppage by ordering employees to use their paid annual leave (for a stoppage of more than 5 business days) or to temporarily assign the employee to other duties in the same or another undertaking. In such a case, the other undertaking must be situated within the same settlement or region; there is no restriction on the minimum number of working days of stoppage prior to taking this measure, and it may continue for as long as the stoppage continues.
Employers may also introduce part-time work, but it may not be less than half of the statutory duration established for the respective period of calculation of the working time, for example, a minimum of 4 hours with normal working time of 8 hours per day. Part-time work can be introduced for a period of up to 3 months. In the latter option, employers shall owe lower remuneration.
If keeping all employees at work would lead to serious losses, employers may consider closing down the whole undertaking, closing part of it, reducing permanent positions or dismissing employees on the basis of a work reduction or stoppage of more than 15 working days.
Are employees entitled to “self-quarantine” at home?
In case an employee has decided to stay at home at their own discretion, they may either work remotely, if it is expressly provided for in their employment contract, or additionally agree on such an option with the employer, or use their paid or unpaid leave.
In general, labour legislation allows employees to refuse to perform the work assigned if their life or health is exposed to a serious and imminent danger. Given the unprecedented situation, it is arguable whether and under what specific circumstances a pandemic may be considered to create an imminent danger to the life and health of employees at their workplace.
Where the employee is quarantined by the health officials, the standard procedure applies – the employee is required to provide medical certificate confirming the quarantine.
« Previous Next »