Selected important labour-law information during the coronavirus pandemic
Labour relations during a pandemic
The opportunity to work from home is considered the most desirable employee benefit. In connection with the spreading of diseases caused by a coronavirus, the possibility of "home office" is used not only as a corporate benefit but also as a protective measure (primarily if the type of work that the employee performs allows this). We shall note that the "home office "(as opposed to home-work/telework) has an occasional nature and is based on an agreement between the employer and the employee; i.e., typically, the employer is not entitled to authoritatively / unilaterally order to work from home. However, this rule does not apply in emergencies, e.g., in times of persistent threat of pandemics. In such a case, both contracting parties may decide 'unilaterally' to perform work from home. According to the occupational health and safety at work regulations, the employee shall have a right to refuse to perform work, or leave the workplace and go to a safe place if he/she reasonably presumes that his/her life or health, or the life or health of other persons is under immediate and serious threat.
Concerning the spreading of coronavirus infection, the employees may reasonably be concerned that their health is at risk. For this reason, the employer should allow "home office", because otherwise it could be considered a breach of OHS regulations. On the other hand, the employer can also order "home office", either collectively (in emergencies) or only towards specific employees, e.g., to those who have arrived from countries affected by a coronavirus. Working from home is considered one of the best benefits of corporations.
From the conclusions mentioned above it is clear that in the foreseeable future a large proportion of employees will be forced to work from home. Although "home office" has been a widespread trend in recent times, the rules of the game are still not entirely clear, primarily because of the lack of precise legal regulation. Even though the Labour Code has a ruling according to which working from home shall be regulated similarly as an "ordinary employment relationship", in our opinion, not all provisions of the Labour Code governing regular employment relationship can be applied to home office.
Working time
In case of domestic work/telework, the employer is not entitled to schedule the employee's working hours, i.e., employees are entitled to set the beginning and the end of working hours and to adjust working hours according to their needs. Despite this fact, it should be added that in such a case, the employer has a right to allocate to the teleworker such amount of work which must be manageable by the employee within the weekly working hours. In connection with this rule, however, we would like to repeatedly note that provisions of the Labour Code related to the domestic work/telework do not apply to the "home office". For this reason, we believe that, unless the employer and the employee agree otherwise, in the case of the occasional "home office", the employer may expect the employee to be available at the time specified during "normal days."
Providing catering for employees during the “home office”
It is clear from the Labour Code that the employer is obliged to provide catering to employees who work from home. Although the employer could offer meals in his/her own or other catering facilities, we believe that in most cases (especially during a pandemic), such way of providing meals would be contrary to the character of the work performed from home. For this reason, the best option is to provide financial payment or meal vouchers to employees who work from home.
Securing of occupational health and safety
The employer is obliged to provide not only meals, but also to implement measures to protect the lives and health of employees during working from home. Although we believe that in the case of a "home office", the employer cannot fully control his/her employees, the relevant provisions of the Labour Code on employer's accountability for damages in case of occupational accident and occupational disease are also applicable for the work from home. Consequently, if the employee can prove that he/she sustained an accident while discharging his/her work tasks or in direct relation to it, he/she is entitled to damages. Mainly, for this reason, it is essential to adopt an internal directive, which regulates the conditions of work and procedural rules in the event of an occupational accident suffered during the "home office".
Provision of technical tools necessary for the performance of the work
While in the case of telework, notebook and other work items are provided by the employer, in the case of occasional nature of the “home office”, provision of work items for working from home is subject to agreement between the employee and the employer. On the one hand, in the case of a “home office”, parties may agree that the employee will use his/her equipment to perform the work. On the other hand, we believe that, even in working from home, the employer is responsible for ensuring that personal data protection is guaranteed. For this reason, the employer has to provide appropriate data protection tools, respectively, inform the employee of the need to ensure such measures, as well as possible sanctions in case of violation of these restrictions.
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However, in the light of the abovementioned facts, it should be noted that that not every type of work is "suitable for home office". For this reason, employers are forced to look for other alternatives. On the one hand, these alternatives should be aiming to ensure continuation of the business activity, but on the other hand, it should be more or less acceptable also for the employees.
Ordering a paid leave
The first option is to order a paid leave. Under the Labour Code, an employer may order a paid leave, but the legitimate interests of the employee must be taken into account. On the other hand, according to the Labour Code, the employer has to announce the drawing of paid holiday to employees at least 14 days in advance; exceptionally, such period may be reduced with the consent of the employee. Also, upon agreement with representatives of employees, an employer may set the collective drawing of a paid holiday if it is necessary for operational reasons, but this holiday may not be set for more than two weeks.
Provision of time off from work with a salary amounting to the employee's average earnings
Another option is to provide a leave with salary compensation knowing that the employee will perform later additional work as compensation for “prepaid” salary. However, we shall add that such "emergency measure" must be accepted by the employee. A suitable alternative may also be an introduction of a working time account (a method for an uneven distribution of working time), either by collective agreement or by agreement with employee representatives. In such case, the employer can schedule working time so that when there is a greater need for work, the employee works more hours than is established for weekly working time (e.g., after the pandemic), and when there is less need for work the employee works fewer hours than is established for weekly working time or may not work at all (e.g., during the pandemic). Contractual parties have to agree on a “clearing period” of the working time account over which the difference between the employee’s determined weekly working time and actual time worked shall be cleared; the clearing period shall not exceed 30 months. In relation to this it is to be noted that the working time may never exceed 12 hours within a 24 hours period.
Nursing benefit from the Social Insurance Agency
Preventive measures adopted by the state to prevent the spread of coronavirus have an enormous impact on the lives of families since, due to the closure of school facilities, parents have to stay at home with their children. Since, in such a case, the "home office" is not the best option (due to the lack of effectiveness of the employee), the parent is entitled to the nursing benefit (if he/she fulfils the legal conditions for its admission). Due to the current extraordinary situation, the Social Insurance Agency will award nursing benefit, if the educational facility of a particular child up to the age of 11 years is closed. This benefit will be provided throughout the 14-day period. Concerning this topic, we have to add that a parent who is receiving a nursing benefit, cannot receive at the same time an income from work.
"Partial unemployment?"
For some employers, the current situation can be extremely costly. Extraordinary measures taken by the State may have a result that some employees become redundant. In this respect, we have to note that according to the current legislation, while the parties may agree that the employee will perform only part-time work, the employee cannot be registered during that time at the labour office and receive a "partial" unemployment benefit.
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From the article mentioned above follows that the extraordinary situation in Slovakia brought the necessity to adopt extraordinary measures at workplaces. Some of the legal instruments, as mentioned earlier, are very specific and ambiguously regulated by law. Due to the fact that each employer has its specifics and non-standard expectations, we recommend for employers to consult their legal questions with experts from the area of labour law before setting up an “extraordinary” mechanism or legal instrument to avoid any “misunderstanding” with the employees and to keep their business within the limits of labour law legislation.
The above memorandum shall not be considered a legal advice. In case of specific questions relating to the above-mentioned topics, please contact our law firm at office@bartosiksvaby.sk.