CORONAVIRUS FROM THE PERSPECTIVE OF LABOR LAW
2020. March 16.
The employer is obliged to ensure healthy and safe working. The instruments and the way of working can be determined by the employer.
In the current situation, it is generally expected from the employer to provide preventive and regular disinfection, cleaning, to make protective equipment available at workplace to prevent the spread of the coronavirus and to require its employees to use it and also monitor compliance.
It is also a preventive obligation of the employer to inform the employees about the possible symptoms of the coronavirus and the spread of the infection according to our current knowledge, about the precautions that they themselves can take as well and the procedure to be followed in case of a suspected infection. Employers are also expected to emphasize the individual and social responsibility of the employees in this situation.
Measures expected of the employer also include avoiding business trips abroad and minimizing personal business meetings and events.
Until government-imposed quarantine is introduced, employers are not obliged to close workplaces, stop production or permit workers to stay at home, unless there are specific circumstances.
However, in order to prevent infection and in preparation for more serious epidemiological control measures employers are advised to consider already at this stage of the epidemiological situation whether they can provide their employees with working conditions at home. If the conditions can be created in a short period of time, then it is advisable to prepare for and implement home office within an economically rational framework. It is also recommended for employers to bring the terms and conditions of work at home under regulation.
Compliance with lawful instructions of the employer is the responsibility of the employees and in the case of violation of the regulations labour law penalties may apply.
Regarding of this extraordinary situation employees cannot complain about data protection if they are required by the employers to report about their private travel abroad or their state of health. Employees may be obliged to:
- to report: when, where, for how long or when they or a relative are planning to travel abroad;
- whether they or their relatives have been exposed to or suspected to be infected with coronavirus;
- immediately inform the employer of the health status of themselves and their relatives should they become suspicious of being infected with coronavirus;
- in case of suspicion of coronavirus, stay away from workplace, call occupational physician, family doctor or the central numbers.
Naturally, the data obtained as described above are only authorized by the employer during the epidemiological situation and the employers must comply with further conditions of data management.
2. Symptom-free employee
It is a basic obligation for employees to be available at workplace and to work during working hours. Therefore, employees are not entitled to deny work on the grounds that they are afraid of being infected. Of course, if there is a specific and imminent danger in the workplace, it will require individual consideration of the case. In the case of a specific and imminent risk of infection the employee may legitimately refuse to appear in the workplace, but availability remains a burden. In this case, the employee is entitled to an absence allowance.
The employee shall also be legally acquitted from his duty to work and availability in the event of absence due to personal, family or duly justified reasons that deserve special consideration. In this case, however, he will not be paid. Which specific circumstances or cases fall under these conditions requires individual examination. In the event of the closure of schools or kindergartens, this reason for exemption may be applicable to a parent who is unable to solve daily childcare at home or to an employee who nurses a relative at home.
If the employee unlawfully fails to fulfill his/her duty to be available or duty to work, notice can be given against him/her, depending on the circumstances, with immediate effect.
As a precautionary measure or in the latent period, if work can be done from home, the employer may permit or require the employee to work from home. The employer has to provide the necessary conditions at his own expense. Work at home is paid to the employee according to his/her employment contract.
If the employee is unable to work from home but does not wish to enter the workplace and there are no grounds for exemption as described above, he or she may be absent upon the agreement with the employer. In this case, the employee will be remunerated for the duration of his/her absence as agreed with the employer.
The employer has the right to unilaterally instruct his employees to stay at home, even if home office cannot be implemented. This is most often the case when the employer requires quarantine on its own policy. For the duration of the quarantine period the employer can order the employee to take the annual paid leave but in this context the employer has to give regular notice of 15 days in advance. If there is no possibility of taking leave, the employer is obliged to treat this period as working time, for which the employee is paid the basic salary.
If the employer is unable to employ the employee because the workplace or the geographical area in which the employer operates has been closed as a result of epidemiological authority measures, the employer can order homework and has to pay the employee accordingly or the employer treats the situation as downtime in which case the epidemiological lock-up can be regarded as a case of vis major whereby the employer is exempt from payment of the time off.
On the other hand, pay for downtime is due to the fact that the employer is unable to provide work for the employee because the factories have been shut down in the area and shortage of raw materials has occurred.
3. Sick employee
If the employee becomes ill, then the first 15 days of the illness in the year has to be treated as sick leave, at which the employee will be paid 70% of the absence allowance. Thereafter, if the illness persists, the employee will be disqualified and may be entitled to sick-pay.
The above mentioned rules are the general rules that employers are familiar with from their everyday life. With regard to the coronavirus, it needs to be pointed out that, under the social security rules, a worker who is banned from his employment and occupation for public health reasons, or if an employee is officially segregated for public health reasons and he/she may not be temporarily employed in any other workplace (job) is considered as disabled to work.
This means that if an employee is hospitalized or has to stay at home in quarantine due to governmental action, or as a result of restrictions he/she is unable to access workplace and can’t work elsewhere either, than he/she will be considered disabled to work during this time and can be entitled to sick-pay.
In this case, the employee may be entitled to sick-pay from the first day of absence, ie sick leave does not apply.
4. Prolonged epidemiological situation
If the epidemiological situation and the dropping out of workforce are long-term, the employer has the following options:
- Modification of the employment contract based on the agreement with the employee (e.g. basic
salary, reduction of working time);
- Unpaid leave;
- Termination for reasons connected with the operation of the employer. In this case, severance pay has also be considered if the duration of the employment relationship this justify.
- Collective redundancies: If the reason for the termination is on operational grounds of the employer and the redundancies concern a larger number of employees (even for 10 persons), the rules on collective redundancies must also be observed. In the case of collective redundancies the number of the terminated employment relationships has to be determined mutual agreements included.
Consultation with the works committee;
Notification to the public employment service;
Informing employees 30 days prior to the termination of employment.