COVID-19: Employers, choices and obligations

In times when the major concern of private companies is the minimization of material damage, at least as much emphasis should be placed on the human factor. The financial uncertainty faced by the employees comes with the uncertainty of their health.

Although, regarding both elements, there are no absolute guarantees, some employers may, with the existing legislative instruments, contribute to a greater degree to the comfort and health of their employees, keeping their activity within the operating parameters.

  1. Employer’s options

As invited by the President of Romania within the content of the Decree issued on March 16, 2020 regarding the establishment of the state of emergency, employers are encouraged to organize, where possible, the manner in which the employees perform the activity by teleworking or work from home. Moreover, this options can be chosen, according to the same decree, by unilateral act of the employer, in contradiction with the applicable legal provisions (Labor Code and Law no. 81/2018 regarding the regulation of teleworking activity) which consecrated the parties' agreement. The Labour Code give the employers the possibility to  unilaterally change the type of work and the work place, in certain situations, such as major force.

According to the legal definition, teleworking is “the manner of work organization by which an employee, regularly and voluntarily carries out the responsibilities specific to his/her job position, occupation, profession in a place other than the work place organized by the employer, at least once per month, by using information and communication technology”. The major distinction between telework and work at home lies in this last statement, “[..] by using information communication technology.”, essential element for teleworking.

We emphasize the fact that the options listed above are applicable as long as the employer is not directly affected by coronavirus.

If affected by the coronavirus effects, the employer might find itself in the suspension of the individual employment cases due to:

  1. temporary interruption or reduction of the activity, without termination of the employment relationship, for economic, technological, structural or similar reasons;

In such a situation, the employer may, either grant, from the salary fund, an allowance of at least 75% of the basic salary corresponding to the job occupied for employees who no longer perform any type of activity  or, if the measure is taken more than 30 working days, to reduce the work schedule from 5 to 4 days, with the corresponding reduction of the salary. To the extent the last alternative is adopted, depending on the specificity of the activity and the nature of the positions, the work can be performed wither from home or in under teleworking regime.

  1. force majeure

However, force majeure does not automatically operate and will have effects as long as force majeure meets the conditions required by law – it is an external event, unpredictable, absolutely invincible and inevitable. This aspect will be analysed and documented on a case-by-case basis. Given the major risk of excessive use, if not abuse, of this legal provision in the situation generated by COVID – 19, in these times, The National Trade Union Body (Romanian: Blocul Național Sindical) requested the Government on Tuesday, March 17, 2020, the suspension of the application of the relevant article of the Labour Code. It remains to be seen how this initiative will be finalized.

Another alternative, recommended, moreover, by the Ministry of Labour and Social Protection, for the purpose of preventing the spread of coronavirus infection, is the establishment of individualized work programs. Such an option may consist in shifting the arrival/departure hours, with the introduction of the flexible element, according to the needs of the employees. It is important to know that this option cannot be applied arbitrarily by the employer and, in order to produce effects, the employee's agreement is required.

  1. Obligations of the employer if the activity is carried out in the workplace

To the extent that employers, for various reasons, choose to continue the activity within the parameters prior to the pandemic, in the workplace, to reduce it or take other measures that involve the presence of employees in the workplace, such as work in shift, they have different particular obligations, depending on the context, from the perspective of the health and safety legislation.

Thus, what are the main obligations that employers have in order to ensure the employees’ health and safety at work?

  • to provide the organizational framework and the necessary means;
  • to inform and train employees; and
  • to prevent occupational risks.

In order to comply with the above, under the given conditions, employers will have to:

  • take measures to avoid and assess risks (this becomes essential when the employer has to make a choice with respect to choose the protection equipment or disinfectant chemicals to be used);
  • permanently provide the employees with protective masks, gloves, disinfectants and all hygienic-sanitary materials, as well as to ensure the stock renewal;
  • draw up a prevention plan to be communicated to the employees, respectively to modify it, under the given conditions, of the existing pandemic;
  • considering the contamination risk, to train the employees with respect to their behaviours;
  • inform the competent Public Health Department in order for the latter to initiate the procedures for carrying out the epidemiological investigation, as soon as the existence of an infected employee is discovered. During the quarantine period, the individual employment contract will be suspended by law and the employee will receive 75% of the average monthly gross income for the last six months out of the 12 months representing the contribution period.

The institutions consist in following the observance of specific legislation in the field of health and safety at work are the territorial labour inspectorates, and those whose attributions are to investigate suspicions of occupational diseases are the public health authorities, upon the notification of the occupational medicine doctor.

Even though the President of Romania suspended, by the decree given on March 16, 2020, the controlling activity of the territorial labour inspectorates during the emergency situation, this seems not to be the biggest problem that employers could face. Thus, to the extent that employers do not take the safety and health at work legal measures, thereby creating an imminent danger of producing a professional illness (art. 349 of the Criminal Code) or do not comply with the measures regarding the prevention or control of infectious diseases, if it has resulted in the spread of such a disease (art. 352 the Criminal Code), the risk exceeds the sphere of the contravention fines and the sanctions applicable in this case by the criminal investigation bodies are either fines or imprisonment of up to 3 years.

Taking into account the risks mentioned above, in the very probable situation where the employers would be unable to procure and make available to the employees the adequate means of preventing the spread of the infection (masks, gloves, disinfectants, etc.), we recommend using the legal options described in Section I above. We appreciate that the factual situation of the non-existence of the means of protection will not be successfully invoked in the attempt to justify not making such available to the employees, in case of the employer's decision to continue the activity in the workplace.