The Covid-19 pandemic seriously impacts the day-to-day business of Romanian companies. The necessary and urgent reorganisation of activities and the various scenarios available to this end must be analysed from the employment, contractual and corporate point of view.
Work from home or telework
In order to prevent the spread of Covid-19, employers may agree with employees to temporarily change their workplace at the employee’s domicile or to carry out the activity by telework (when the employee fulfills his/her work duties using information and communication technology).
Work from home or telework must be expressly stipulated in an addendum to the employment contract.
The addendum should include information such as: (i) the program within which the employer can check the employee’s activity; (ii) the concrete manner of checking; (iii) the employer’s obligation to provide to the employee all the tools necessary for carrying out his/her activity.
Establishing individualized work programs
The Ministry of Labor and Social Protection also recommends to employers to take certain measures for more flexible work relations, such as to establish individualized work programs, upon agreement or request of the employee concerned and in accordance with the maximum legal length of work time.
If work from home or telework are not possible, employers may consider this recommendation in order to reduce the number of people present simultaneously at the workplace.
Days off for employees
The employer may also grant employees days off in the form of:
(i) unpaid leave upon agreement of both parties;
(ii) compensation in advance of overtime, during periods of decrease of employer’s activity, by granting paid days off (from which overtime that will be provided in the next 12 months will be eventually compensated).
Suspension by law of employment contracts
The individual employment contract is suspended by law in case of quarantine, force majeure (e.g. epidemic) and leave for temporary work incapacity.
The employee has no longer the right to receive his/her salary during the suspension. The dismissal of the employee by the employer during the suspension of the activity caused by quarantine, as well as during the temporary work incapacity is prohibited.
Quarantine leave and allowance
Employees who are prohibited from continuing their work due to a contagious disease (i.e. Covid-19) may benefit in principle from quarantine leave and allowance. These are granted for the duration established by the certificate issued by the public health department.
The gross monthly amount of the quarantine allowance represents 75% of the average gross monthly income for the last 6 months within the 12 months that represent contribution period, up to the limit of 12 gross minimum wages per month.
The quarantine allowance is fully borne by the budget of the National Health Insurance Fund, but it is paid monthly by the employer and the employer shall recover these amounts subsequently from the Fund’s budget.
Medical leave and allowance for temporary work incapacity
After the diagnosis is confirmed (i.e. the infection with Covid-19), the employees may benefit in principle from medical leave and allowance for temporary work incapacity. However, medical leave certificates for temporary work incapacity cannot be issued for more than 10 calendar days, for one illness episode, in one or more stages.
The monthly gross amount of the temporary work incapacity allowance is the same as the quarantine allowance (it may be 100% in case of infectious diseases in group A and of the medical surgical emergencies).This allowance is borne by the employer from the first until the 5th day of the temporary work incapacity period and from the budget of the National Health Insurance Fund, for the next period until the incapacity ceases (being also paid monthly by the employer and then recovered from the Fund’s budget).
Suspension of employment contracts by the employer
The employment contract may be suspended by the employer in case of temporary interruption or decrease of the activity, without termination of the employment relation, for economic, technological, structural or similar reasons.
During the decrease and/or temporary interruption of the activity, the employees:
(i) benefit from an allowance, paid from the salaries fund, which may not be less than 75% of the basic salary corresponding to the respective job;
(ii) will be available to the employer, who has the possibility to request the recommencement of the activity at any time.
Temporary decrease of the work program
If the activity is temporarily reduced for more than 30 working days, the employer can decrease the work program from 5 days to 4 days per week, until the situation is remedied.
The salary will be reduced accordingly. Before taking this decision, however, the employer must consult with the union or the employees’ representatives.
Occupational safety and health
The employee has:
(i) the right to occupational safety and health;
(ii) the obligation to comply with the safety and health measures in the establishment.
The employer has the obligation to ensure the safety and the health of the employees in all work related aspects, by taking preventive measures to avoid the spreading of the COVID-19 virus, such as informing employees about the measures taken by the relevant competent authorities, regular disinfection of the common areas etc.
The measures taken by the employer may under no circumstances entail financial obligations for employees.
As another protective measure, the employers may schedule frequent medical checks of the employees. The purpose of such checks is also to identify diseases which are a risk for the life and health of the other employees at the same workplace, such as COVID-19.
Suspension of the company’s activity
The employer may decide to temporarily suspend the company’s activity for prevention reasons or to avoid the spread of contamination with the COVID-19 virus.
In this regard, legal procedures must be carried out at the competent Trade Register Office, National Agency for Fiscal Administration and Territorial Labor Inspectorate.
During the suspension period, the company cannot carry out activities corresponding to its scope of business.
The temporary suspension of the company’s activity must not exceed 3 years from the registration of the suspension in the Trade Register.
The company’s activity may be resumed at any time during the 3 years period, by following the legal procedures.
Contractual liability
The spread of the COVID-19 virus may be qualified as a case of force majeure or unforeseeable circumstance. The force majeure is an external, unpredictable, invincible and unavoidable event, while the unforeseeable circumstance is an event that cannot be predicted nor prevented by the person that would have been liable if the event had not occurred.
Such qualification of the COVID-19 pandemic may result in the possible exoneration from contractual liability of the party who hasn’t fulfilled its contractual obligation as a result of such an event.
Special attention sould be therefore paid to the wording of the force majeure and unforeseeable circumstance clauses, as well as to the contractual liability limitation clauses, of the contracts concluded in the near future.
GDPR
As a measure to prevent the spread of COVID-19, processing of an employee’s personal data (including health data) by the employer may become necessary, such as the employee showing relevant symptoms for COVID-19, recent trips to the affected regions or contact with a person potentially infected with COVID-19.
In such situations, GDPR rules should be closely observed, as health data can only be processed in exceptional cases, e.g. when processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, or medical diagnosis.