The Government Emergency Ordinance no. 182/2020 for completing the Government Emergency Ordinance no. 147/2020 on granting parents days off to supervise children when in-person teaching activities are limited or suspended by schools and early childhood education units, following the spread of the SARS-CoV-2 coronavirus (“GEO 147”), as well as the Government Emergency Ordinance no. 132/2020 on support measures for employees and employers in the context of the SARS-CoV-2 pandemic, as well as for stimulating employment growth (“GEO 132”)"> COVID-19 « Back
On October 27, 2020, given the increase in the number of illnesses among children and in the risk of illness, in order to cover all the parents’ needs and to create a favourable legislative framework, aligned with that previously defined by GEO 147, respectively by Order no. 5487/1494/2020 for the approval of the measures for organization of the activity within the educational units / institutions in safe epidemiological conditions, for the prevention of the diseases with SARS-CoV-2 (”Order 5487”), the Romanian Government adopted the above-mentioned ordinance no. 182/2020 (“GEO 182”) which provides for the possibility for the parents / adopter / person who has the child in custody for adoption / the person who has the child in foster care or under guardianship / the person who has the child in care, to benefit from paid days off with 75% of the basic salary (but not more than 75% of the gross average salary), if the children, whether they are natural / adopted / in placement or under guardianship / in care have chronic diseases and will not attend classes, based on the doctor's recommendations. To this end, the parent or other eligible persons will submit to the employer the relevant certificate issued by the family doctor / specialist, together with the declaration on their own responsibility and the other documents attesting their quality.
GEO 182 also adds that GEO 147 applies to both Scenario 2 (“Daily participation of all pre-schoolers and primary school students, students in the 8th and 9th grades , with and the application of all protection norms and the partial return (by rotation of 1-2 weeks) of the students from the other gymnasium and high school classes, with the observance and application of all the protection norms”), as well as the scenario 3 (“ Participation of all pre-schoolers and students in activities / online lessons”) provided by the Guide on sanitary and protection measures in pre-university education units during the COVID-19 pandemic, annex to Order 5487. The number of days that may be granted will coincide with the duration provided in the decisions of the county committees for emergency situations or of the Bucharest Municipality Committee for Emergency Situations.
The absolutely surprising and controversial element of novelty is the fact that this aid, respectively the paid days off in a maximum amount of 75% of the gross average salary, respectively approximately 194 RON / day, will be granted to the eligible categories mentioned above. only after the employer has applied the legal regulations in force for carrying out the activity through telework or work from home, if the workplace allows it. It is already well known that teleworking is encouraged, including by providing the financial support provided by GEO 132, but not granting paid days off in the context of adopting the teleworking regime or working at home compromises the employee's own observance of his obligations in the execution individual employment contract.
It remains to be seen to what extent it could be assessed that the condition of applying telework or work at home has not been met, the verification key to be used, as well as the effects that a possible rethinking of the possibilities could entail available to employers (especially in the context in which the telework measure can no longer be taken unilaterally by the employer, as during the state of emergency).
Another amendment brought by GEO 182 answers the questions asked by many employers who issued decisions through which they ordered telework during the state of emergency, but did not register them in REVISAL, according to the requirements of Government Decision no. 905/2017. Thus, the RON 2,500 telework aid provided by GEO 132 to be granted for each employee who worked in telework during the emergency period, for at least 15 working days, is not granted to employers who did not register to REVISAL the elements of the employment relationship, which established the development of telework.
On October 23, 2020, GEO 180 entered into force, normative act which provides that, for insured persons for whom the measure of isolation has been ordered at home or in another location (because they show suggestive signs and symptoms, specific to the case definition until diagnosis or have been diagnosed with an infectious disease, but do not show suggestive signs and symptoms or symptoms that do not require isolation in a health facility), family doctors shall issue medical certificates stating that they will monitor these persons, for a period determined according to the evolution of the disease and the duration of monitoring.
For the insured persons for whom the isolation measure was ordered and, following the specific para-clinical investigations, the diagnosis of infectious disease was not confirmed, the family doctor grants medical leave for quarantine based on the document issued by the county public health directorate or, as the case may be, of the municipality of Bucharest and for the period registered in it.
The above measures are also applicable to the insured persons who have been isolated at home or at a declared location until the date of entry into force of GEO 180 and the medical leave certificates will be granted by the family doctor, based on the documents issued by the public health directorates and for the period stated therein, within 30 days from the date of entry into force of this emergency ordinance. The applicable procedure is provided by Order 1818/1111/2020, which entered into force on October 27, 2020.
The legal issue submitted to the analysis of the High Court of Cassation and Justice (“HCCJ”) consisted in establishing the legal nature of the action brought by the employer in contradiction with his employee for the refund of the amounts paid by the first to the second, voluntarily, based on an enforceable court decision, which is subsequently annulled during the appeal.
This subject has given rise to different views in the national case-law and the courts ruled differently on the legal classification of the action in question and, consequently, on the court’s jurisdiction to solve it in the first instance.
The views expressed in national case-law were as follows:
First opinion: such an action has the legal nature of a labour dispute, the settlement of which falls within the provisions of art. 256 para. (1) of Law no. 53/2003 on the Labour Code, attracting, from a procedural point of view, the material competence of settlement in the first instance in favour of the tribunal - Section specialized in labour and social insurance disputes.
Second opinion: such an action has the legal nature of a request for the enforcement reversal, the settlement of which falls within the provisions of art. 724 para. (3) of the Code of Civil Procedure, attracting the material competence of settlement in the first instance in favour of the court of execution, respectively of the court.
By Decision no. 15/2020, the HCCJ validated the first opinion and established that the action brought by the employer in contradiction with his employee for the refund of the amounts paid by the first to the latter, voluntarily, before the beginning of the enforcement, based on an executory court decision, of the first instance, which is subsequently annulled in the appeal, takes the legal nature of a labour dispute, the solution of which is circumscribed to the provisions of art. 256 para. (1) of Law no. 53/2003 on the Labour Code, attracting the material competence of settlement in the first instance in favour of the tribunal – the Section specialized in labour disputes and social insurance, according to art. 208 and art. 210 of the Law on social dialogue no. 62/2011.
In conclusion, the HCCJ ruled that failure to comply with the obligation to reimburse the amounts received by an employee as compensation established by a court decision annulled by the superior court may give rise to a labour dispute, pursuant to art. 256 para. (1) of the Labour Code.