Additional Rights and Opportunities Available to Employers for the Period of the State of Emergency

The Measures and Actions during the State of Emergency Declared with a Decision of the National Assembly from 13 March 2020 Act, promulgated in State Gazette issue 28 from 24.03.2020, provides for additional rights and opportunities available to employers to overcome the problems associated with the bans for certain types of activities. The regulation of employment relations is divided between the Labor Code and the new law regulating specific measures during the declared state of emergency, with the latter legal act posed to lose its legal effect after the expiry of the term of the state of emergency. The main measures are aimed at seeking balance and sharing the risk of the imposed restrictions between the employers, the workers and the State, and include the following:

Suspension of the Activity of Part or of the Whole of the Enterprise

The envisaged amendments to the Labor Code make it possible for the employer, in the event of a state of emergency, to suspend the work of part of the enterprise or of individual workers or employees, for the whole or part of the period of emergency.

The work of the enterprise or part of it may also be suspended by an order of a State authority. In this case, the employer is obliged not to allow the workers or employees to their workplaces. Although the law regulates the hypothesis of an ordered termination of work, this obligation has already arisen for those employers whose work was terminated by the prohibitions imposed in the form of epidemiological measures by the order of the Minister of Health of 13 March 2020.

The proposal for payment of compensation to the worker or employee by the employer in the amount of 50 percent of his gross wage and not less than 75 percent of the minimum wage for the country, when the work has been terminated by an order of a State authority, has not been included in the law.

Instead, an amendment to the Social Security Code (SSC) is foreseen, according to which, during the state of emergency, but for no more than three months, the National Social Security Institute shall transfer 60 percent of the amount of social security income for January 2020 for persons insured under an employment relationship by insurers meeting the criteria laid down by an act of the Council of Ministers. The funds are transferred by bank to the respective insurer within 5 working days on the basis of written information provided by the Employment Agency. A sanction is also envisaged – reimbursement by the insurer of the received funds if he does not pay the full amount of the salary. The criteria to be met by employers are yet to be determined by the Council of Ministers.

When the work is terminated by an order of the employer and not of a State authority, the worker or employee is entitled to his gross remuneration.

Use of Paid and Unpaid Annual Leave

The law provides for the possibility for employers, in the event of a state of emergency, to grant up to one-half of the paid annual leave to the worker or employee without their consent.

Upon suspension of work, either by order of the employer or of a State authority, the law grants this right to the employer with respect to all workers or employees, whether or not they have obtained a minimum of eight months’ service.

In the following cases, in a state of emergency, the employer is obliged to provide the use of paid or unpaid leave requested:

– a pregnant worker or employee, as well as a worker or employee in advanced stage of vitro treatment;

– mother or adoptive parent of a child up to 12 years of age or a disabled child, regardless of the age;

– worker or employee who is a single father or adoptive parent of a child up to 12 years of age or a disabled child, regardless of the age;

– worker or employee under 18 years of age;

– worker or employee with permanent disability of 50 and more than 50 percent;

– worker or employee with the right to protection in the event of dismissal – a reassigned one (regardless of the incapacity rate) and worker or employee suffering from any of the illnesses specified in an ordinance of the Minister of Health.

During the state of emergency, any period of leave used shall be recognized as length of service.

The proposal that if the worker and employee has used all of their paid annual leave, the employer could provide unpaid annual leave, has not been incorporated in the law.

Instituting Part-Time Work

Where the work of the enterprise has not been suspended, the employer has the right to institute part-time work for the whole enterprise or for one of its units, for the whole period of state of emergency or for part of it. In this case, the existing provisions of the Labor Code continue to apply, stipulating that the duration of part-time work may not be less than half the statutory length of working time. The already existing obligations of the employer remain: to take into account the requests of workers or employees to move them from full-time to part-time; to provide in a timely manner at an appropriate place in the enterprise written information to workers and employees on vacancies and positions on a full and part-time basis; this information is also made available to trade union representatives and workers and employees’ representatives; to take measures to facilitate access to part-time work at all levels in the enterprise.

Assigning Work from Home and Remote Work

The employer has the right, without the consent of the worker or employee, to instruct him to perform temporarily work from home and / or remote work. For this purpose, an order is issued and the place of employment is changed in the employment contract without changing the other conditions.

The employer’s order should specify the conditions for carrying out work from home, including the order for assigning and reporting work; the way of supplying materials and handing in the work; consumption costs for the workplace and their payment and other specific conditions.

Similarly, the order for remote work addresses issues related to work, technical and other types of workplace equipment, maintenance costs, conditions for delivery, replacement and maintenance of equipment and other specific conditions.

The purpose of the amendments to the Labor Code is to preserve the employment conditions in the declared state of emergency, therefore the state of emergency and the restrictions and measures imposed by it are not provided as grounds for termination of the employment contract.