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What can employers do and what not in the COVID-19 situation according to the Labour Code?

We discuss the labour law questions most frequently asked in the COVID-19 induced pandemic situation based on the Labour Code. What can employers do, how can it change the working hours and the employment of employees?

 1. Who is responsible for maintaining a healthy workplace?

It is primarily the employer who must take the appropriate steps for health prevention. The employer must provide the requirements for non-health-threatening and safe work according to the Labour Code. However, the employee also has the responsibility to cooperate! He or she must comply with the employer's requirements and must report any emerging health risks. If the employee incurs costs in relation to the employer's requirements, for example because he must take a taxi, the employer must reimburse this cost to the employee.

2. What can the employer do if a risk factor arises in relation to the employee? 

In the emerged pandemic situation, such a risk could be a trip of the employee abroad or a relative visiting the employee from abroad. By default, the employer cannot make its employees accountable for the activities they pursue and the people they meet in their free time. However, in this situation, the employer may request a declaration from the employee and the employee has an obligation to inform the employer if any factor may arise which may pose a risk to the employee's or his co-workers' health. If there is a risk factor based on the employee's declaration, the employer may order the employee to work from home or if the employee does not work and the parties do not agree otherwise (i.e. in case of a preventive voluntary quarantine) the amount payable for downtime must be paid.

 3. What opportunities does the introduction of home office work provide?

 If the employer is in the favourable position that it can let employees work from home, it must, above all, proceed according to the policies in force. If there is no policy in this regard, the employer still has options as follows.

4. Can home office work be ordered unilaterally?

Even in the emerged situation, employers must keep in mind that the employee's place of work is specified in the employment contract or based on the usual place of work it will be an identifiable place, which in most cases, is not identical with the place of home office. However, the employer may use the opportunity provided in the Labour Code and may unilaterally order work in divergence from the employment contract, i.e. home office work also. The cap on this option is 44 working days or 352 hours a year. However, in the grieve case when this period is not enough for the parties, the employment contract must be amended by mutual agreement

5. When does home office work qualify as distance work

If the employee works from home on a regular basis using IT equipment and forwarding the results of his or her work electronically, this will qualify as distance work. However, distance work is not merely a question of the parties' agreement but must be included in the employment contract! In this case, the employer must notify the employee, for example, of the manner in which it controls his or her work and the restrictions and conditions that the employee must comply with regarding the use of IT or electronic equipment.

6. Who will have to provide equipment during home office or distance work?

It is fundamentally the employer who must provide and bear the costs of the equipment necessary for work. However, the Act on Labour Protection expressly allows employees to use their own equipment if the parties agree so. In this case, the employer will have an obligation of risk assessment in respect of the equipment used.

7. Do special labour protection requirements have to be observed in the case of distance work?

Even if distance work is introduced, the employer will have the obligation to make sure that working conditions meet requirements. In addition, several other labour protection requirements must be satisfied also, which do not apply or apply differently in the case of traditional employment.

8. Can the employer oblige the employee to work without a home office arrangement?

If the employer is unable to provide the opportunity of home office work, it may oblige the employee to be available and to work. If the employee is not sick and is not under any authority restriction (e.g. isolation or quarantine),the employer may legitimately oblige him or her to work.

9. Is working from home an option in the case of blue-collar workers?

Yes, the option exists but it obviously has its limits. The concept of outworker work is included in the Labour Code if employment can be established for work, which may be performed independently. This typically applies if the employee is able to process materials and prepare finished products at home. The unique feature of this arrangement is that in this case, wage is determined based on performance.

10. What alternatives are available if the employer is unable or unwilling to employ the employee?

The employer has the option of using the employee's paid annual leave to cover this period. We must note that, according to labour law rules, the employee may only be ordered on leave unilaterally if the employer communicates such leave to the employee 15 days in advance. The parties may, of course, also agree on the employee taking a leave of absence from work in which case the 15-day restriction does not apply.

If there is no alternative, the parties may also change full-time employment to part-time, which will obviously mean a reduction of the employee's wage but maybe a way to avoid the termination of employment.

11. Can unpaid leave be used or ordered?

There is no labour law obstacle to using unpaid leave. The employee and the employer may agree in respect of the work period to apply a wage different from the one specified in the employment contract or to maintain the employment relationship without wage payment. However, the employer is not allowed to order unpaid leave unilaterally.

12. What benefits are payable by the employer and when?

a.) If the employee works at the workplace or in home-office, wage is payable.

b.) If the employee would like to work but the employer is unable to give him or her work (e.g. because the products or raw materials ordered are not delivered),downtime pay is payable to the employee. The only exception is if the employer is unable to give work to the employee due to an unavoidable external cause.

c.) If the employee is unable to come to his or her workplace due to epidemic isolation and cannot be employed even temporarily at a difference place (or in a different job) either, the employee will qualify incapable of work. Please note that if the employee is in isolation but is otherwise able to work in a home office arrangement, there will be no incapacity to work and wage will be payable.

13. Is cafeteria payable to employees?

Eligibility for cafeteria benefit is regulated in the employer's cafeteria policy, the answer will, therefore, vary by company. In general, however, we can say that cafeteria eligibility must be determined in line with the principle of equal treatment.

14. Who will bear the costs of sick pay?

If the employee falls ill, he or she is eligible for sick leave and sick pay. The first 15 days of the benefit compensating for the loss of income in the year will qualify as sick leave and will be payable by the employer. Any further incapacity for work will qualify as sick pay period. Sick pay is disbursed by the health insurance authority but, in certain cases, the employer will have to pay one third of the sick pay.

15. What other work reorganisation options are available?

The employer may introduce a work-time framework in order to restructure working time. However, work-time framework is limited and by default it may not be applied longer than four months or sixteen weeks. Only in exceptional cases may employees apply a six-month or twenty-six-week or a thirty-six-month work-time framework. As rest times in between work must also be observed if work is rescheduled, there is still a limit to the flexibility of working hours in this case also. We wish to point it out that the work-time requirement or the wage payable will not be less with this solution alone, but work can be rescheduled.

If the employer introduces a work-time framework, it will also be able to account for times of leave (holidays) in hours, not in days. This arrangement is intended, above all, to compensate for variable-length working days within the work-time framework but with an agreement of the parties it may also be suitable for the employer to schedule times of leave so that the reduced workload is broken down to only a few hours per day. 

It is important, however, that as in this case holidays are granted in divergence from the Labour Code, this solution may only be applied if it is beneficial for the employee.

16. Can employment be terminated for a reason due to the pandemic situation?

The pandemic situation does not give ground for termination with immediate effect if the employer is unable to give work. In this case, the employer may terminate the employment relationship for a reason relating to the employer's operation.

However, in the case of such termination also, we have to keep in mind that the termination will qualify as a termination for a reason related to the employer's operation, which means that the employer will not be released from the obligation to provide severance pay and the rules relating to protected groups of workers (workers of protected age, parents of children younger than 2 years of age) will still apply! 

In the case of definite-term employment relationships, there is an opportunity for early termination of employment if the epidemic situation is regarded as an unavoidable external cause, which renders continued employment impossible.

Do you have questions as an employer?
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In this summary, we gathered typical questions known to us and provided a general interpretation of these. Any use and application of these will be at the reader's own risk. As the information is general in nature, it does not qualify as advice on specific cases. The information is therefore not comprehensive, and the circumstances of specific cases may lead to different interpretation or may require a different approach. We do not guarantee the completeness and correctness of the communicated information and assume no liability in relation to business and legal decisions founded on the information in specific cases.

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