During this week, three normative acts of interest for employers and employees were published, respectively:

 

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COVID-19
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The extension of state support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-COV-2

During this week, three normative acts of interest for employers and employees were published, respectively:

  • Emergency Ordinance no. 211/2020 regarding the extension of the application of some social protection measures adopted in the context of the spread of the SARS-CoV-2 coronavirus, as well as the amendment of the G.E.O. no. 132/2020 on state support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-CoV-2 coronavirus and for stimulating employment (hereinafter “G.E.O. no. 211/2020”), published in the Official Gazette no. 1189 of December 7, 2020;
  • Government Decision no. 1046/2020 regarding the completion of the Government Decision no. 719/2020 approving the procedure for settlement and payment of the sums granted under Government Emergency Ordinance no. 132/2020 on state support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-CoV-2 coronavirus and for stimulating employment (hereinafter “G.D. no. 1046/2020”), published in the Official Gazette no. 1199 of December 9, 2020;
  • Law no. 282/2020 regarding the approval of the Government Emergency Ordinance no. 132/2020 on state support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-CoV-2 coronavirus and for stimulating employment (hereinafter "Law no. 282/2020"), published in the Official Gazette no. 1201 of December 9, 2020.

These normative acts bring a series of amendments and completions to the current legislation applicable during the alert state, covering two major aspects, namely:

1.     The extension of the application of some social protection measures adopted in the context of the spread of the SARS-CoV-2 coronavirus

By G.E.O. no. 211/2020, the legislator established the extension of the state support for technical unemployment granted based on G.E.O. no. 30/2020 on amending and supplementing certain legal documents and for establishing social protection measures in the context of the epidemiological situation caused by the spread of SARS-CoV-2, until June 30, 2021.

N.B.1. The technical unemployment benefit is 75% of the base salary corresponding to the job occupied, but not more than 75% of average gross earnings provided by Law no. 6/2020 on the state social insurance budget for 2020.

The indemnity is subject to taxation and payment of social contributions, in accordance with the law.

 

The extension applies, in accordance with the law, to all domains of activity provided by Law no. 55/2020 on some measures to prevent and combat the effects of the Covid-19 pandemic (i.e., domains of activity that are subject to a suspension measure, according to the law), as well as in the case of employers whose activity has been suspended as a result of the epidemiological investigation of the county public health directorates.

Mention should be made that, prior to the adoption of this ordinance, this support was accessible only until December 31, 2020.

2.     The amendment of the G.E.O. no. 132/2020 on state support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-CoV-2 coronavirus and for stimulating employment 

By G.E.O. no. 211/2020, the legislator ordered the amendment of G.E.O. no. 132/2020 on state support for Kurzarbeit (reduction of the working schedule), as follows:

  • the employers’ possibility to reduce the working schedule of the employees with maximum 80% of the duration provided within the individual employment agreement (compared to a maximum of 50%, as previously provided), under the conditions provided by law;
  • the 5 days/month in which the reduction of the working schedule is mandatory in order to benefit from this state support no longer have to be consecutive (the employer thus having the possibility to have flexible work schemes);the prohibition of employment or subcontracting for activities identical or similar to those subject to reduced working schedule applies strictly to the jobs affected by this measure and not to the entire employing company (being also eliminated the extension of the interdiction at the level of subsidiary, branch or other secondary offices defined by Law No. 31/1990 on the companies);
  • the prohibition to cumulate, for the same employee, the state support for Kurzarbeit with the support granted under art. I and III of G.E.O. no. 92/2020 for the establishment of active support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-CoV-2 coronavirus (i.e. reimbursement of a part of the salary in case of employees of whose working relations have been suspended during the state of emergency or of state of alert în in accordance with art. 52 para. (1) let. c) of Labour Code and incentives for hiring unemployed persons from vulnerable groups), as well as for the amendment of some normative acts, if the specific periods of granting overlap.

 

In addition, by G.D. no. 1046/2020, the legislator established the extension of the state support for Kurzarbeit (reduction of the working schedule) until June 30, 2021 (previously this support was accessible only until December 31, 2020).

N.B.2. During the period of reduction of the working hours under the conditions provided by G.E.O. no. 132/2020, employees affected by this measure will receive an indemnity of 75% of the difference between the monthly gross basic salary provided for in the individual employment agreement and the monthly gross basic salary corresponding to the hours actually worked as a result of the reduction of the working hours.

The indemnity is considered income from salary and is subject to taxation and payment of social contributions, in accordance with the law.

 

Unfortunately, some of these changes are not found in Law no. 282/2020, which will enter into force on December 12, 2020, the most important being:

  • under Law no. 282/2020, the maximum limit for reduction of working schedule remains 50% of the “daily, weekly or monthly” working time, as provided in the individual labour agreement;
  • Law 282/2020 restores the application at the level of the subsidiary, branch or other secondary offices of the prohibition on the employment for identical or similar activities as those performed by employees whose working hours have been reduced, as well as on the subcontracting of such activities performed by employees whose working time has been reduced;
  • the reduction of the working schedule may be ordered during the state of emergency/alert/siege, as well as for a period of up to 3 months from the date of cessation of the last period in which the state of emergency/alert/siege was established.

Also, Law no. 282/2020 provides that the employer has to submit for obtaining the reimbursement of the indemnities granted to employees subject to Kurzarbeit, among others, the agreement concluded with the trade union representatives/employees’ representatives, as the case may be, regarding the percentage of the number of employees whose working schedule has been reduced, fact that is inconsistent with the rule established by art. 1 of the same normative act, according to which the employer implements Kurzarbeit with the information and consultation of these representatives (without the need for their consent).

The inconsistency of these normative acts will create difficulties in practice, which is why we hope that the legislator will intervene shortly to remedy this situation. Until then, taking into consideration that Law no. 282/2020 has been enacted at a later date than the two normative acts, the provisions of the aforementioned law shall prevail and be applied as of December 12, 2020.

Finally, we mention that Law no. 282/2020 also brings several benefits to employers in terms of:

  • eliminating the employer's obligation to submit the elements of the decision regarding the reduction of the working schedule within the General Register of Employees;
  • granting the telework support to employers, under certain conditions, for employees who worked under teleworking regime during the state of emergency or the state of alert for at least 15 working days (in the previous wording, this benefit was accessible only for employees who worked in teleworking regime during the state of emergency).