It is not an overstatement that the COVID-19 pandemic spreading in our country is fundamentally changing the world of labour, forcing employees, employers and legislation into unknown situations. We present to you below an overview of the most important labour law aspects of the pandemic and the measures taken to combat with it as well as some options for employers to maintain their ability to operate and to reduce uncertainty in connection with the present situation.
Discretional derogation from the employment contract; home office and teleworking
According to the Labour Code, employers are entitled to temporarily reassign their employees to jobs and workplaces other than what is contained in the employment contracts, or to shift them to another employer. The duration of such special employment may not exceed a total of forty-four working days or three hundred and fifty-two scheduled hours during a calendar year.
In addition, the Government Decree effective from March 19, 2020 stipulates that employers may unilaterally order home office and telework for the employee (without any limitation of time).
While the rules of home office are not laid down in the Labour Code and its details have so far been established by practice, the conditions for teleworking are regulated by law precisely. Teleworking shall mean activities performed on a regular basis at a place other than the employer’s facilities, using IT equipment and the product of work is delivered by way of electronic means. In case of teleworking, the place of work shall be set out in the employment agreement. On the other hand, home office practically means that the employee may decide the place of work at his/her own discretion.
In case of teleworking, employers must ensure work equipment and safe working conditions, while in case of home office it is unclear what safety obligations the employer may have. Therefore, it seems appropriate to regulate responsibilities, liability, monitoring, working schedule and privacy issues as well as the use of work equipment.
Downtime
According to the Labour Code, under an employment contract, the employer is required to provide work for the employee. As a result of the COVID-19 pandemic, employers may not be able to provide work, not even in home office or teleworking.
A so-called downtime is when the employer cannot fulfil their obligation to provide work for the employee. During the downtime, the employee shall be entitled to his base wage, unless the downtime is a result of unavoidable external reasons. There are different opinions as to what can be considered an unavoidable external reason in light of the current official measures and epidemiological restrictions, i.e. whether the base wage shall be paid for the period of the downtime because, for instance, shops are not forced to shut down, albeit their opening hours are reduced and customers without a justified reason cannot enter certain shops without breaching the rules of the soft curfew.
Allocation of vacation time
As we wrote about it earlier, the employer is entitled to allocate vacation time – with certain restrictions set by law. In the current situation, work is less efficient for many companies and even impossible in some jobs due to its nature. This period may be a good time to allocate a part of the annual leave. Employers should bear in mind that as a general rule, employees shall be notified of the scheduled date of their vacation time no later than fifteen days before the first day of vacation and vacation shall be allocated in a way to contain at least fourteen consecutive days once in a calendar year.
Unpaid leave
Based on the agreement of the parties (or on the employee’s request in certain explicit cases provided by law), it is possible for the employee to have an unpaid leave. However, given that the employee will not be insured during the period of unpaid leave, this is rather a detrimental solution for the employees. We hear from many sources that employers started to send their employees unilaterally to unpaid leave. This is an unlawful practice as the employer may not unilaterally order an unpaid leave but eventually a downtime, however, as we mentioned it is uncertain whether such period shall be remunerated.
Termination of employment – with the intention of future cooperation
In industries most affected by the pandemic, the present situation leaves no choice but to terminate certain employment relationships. Such notice of termination may be justified simply with reasons related to the operation of the employer, however, the employer shall observe the relevant notice period and the rules for severance pay.
At the same time, it may be important for the employer to employ as many tried and tested workers as possible after the storm has passed, thus avoiding the lengthy and resource-intensive selection process. It may be a good solution for these companies to achieve a mutual agreement with their employees on the termination of employment and, at the same time, on the conclusion of an employment contract at a specified date. Thus, the parties enter into a pre-contract with each other, on the basis of which they will be obliged to enter into a new employment at a subsequent date to be determined by them.