Ad victoriam – challenges and measures for employers during the coronavirus outbreak
The new coronavirus has spread to Slovenia, leading many employers to wonder how to proceed with their daily operations. The situation and measures introduced by the state are constantly changing, so we recommend employers to regularly monitor the conditions and information provided by state authorities and follow the measures of relevant health institutions. Nevertheless, this article sums up answers to some of the most frequently asked questions about the current measures, our reflections and good practices that have been established. The situation is constantly changing, so we will be providing regular updates.
1) Do employers have any new, additional obligations due to the coronavirus outbreak?
Employers must primarily provide their employees with safe and healthy working conditions. It is also in the employers’ best interest to keep their workforce healthy. We recommend that employers instruct their employees on how to prevent infection. Some simple guidelines are available on the National Institute of Public Health website for preventing infection (“NIJZ”). It is also suggested that you install hand sanitizers in your premises. Some employers are also opting to measure the body temperature of their employees prior to them entering the employer’s premises.
The next recommended step is for employers to lay out what measures should be taken if an employee exhibits symptoms of COVID-19. Employers should designate an area to which the person exhibiting symptoms can be moved until they receive further instruction from the relevant health institutions. It is important to note here that pursuant to the Worker Participation in Management Act, employers with an organized workers council must inform and consult the workers council before passing any work safety and health-related measures.
On the other hand, it is our opinion that without relevant instructions from health institutions, the employer’s duty of guaranteeing safety and health in the workplace does not imply employers are obligated to send any employees who have recently been abroad, but are not exhibiting any signs of the disease, to wait for work from home or to work from home.
2) Can the employer send an employee on an international business trip during the outbreak of coronavirus?
We do not believe the coronavirus outbreak should warrant the cancellation of all trips abroad.
The Ministry of Foreign Affairs of the Republic of Slovenia, however, advises against all travel. Special warnings have been issued for any travel to Italy, Serbia Spain, Iran, South Korea, the USA and China. Similar warnings have also been issued for any travel to Spain, Serbia and the USA. The situation is constantly changing, so we advise employers to check the information for passengers on the NIJZ website and the website of the Ministry of Foreign Affairs before sending employees on international business trips. Before embarking on the business trip abroad, employers should consider any possible complications and obstacles pertaining to access to healthcare in the given situation, and make an informed decision on whether the business trip is truly necessary at this time.
If relevant health institutions advise against travelling to a certain area, we would recommend employers cancel the trip if at all possible. If the mission is urgent, employers should provide the employees with the appropriate protective gear before their departure (e.g. masks, hand sanitizer, disinfectant for objects and so on) and instruct them to avoid contact with people, especially ill people.
3) Should employees who have recently returned from China or other hot spots stay home? Can the employer instruct employees to work from home?
NIJZ advises work should be done from home if at all possible. Employers should warn employees who have fallen ill to stay at home and follow instructions. However, the situation is constantly evolving, so we recommend employers follow instructions for employers that have been posted on the NIJZ website.
If an employer would like to limit persons who are not exhibiting symptoms from coming to the workplace, we believe this kind of measure would be permissible, as we believe the employer’s interest is tied to guaranteeing health and safety in the workplace and that the preservation of a healthy workforce would prevail over the individual’s right to work. In our opinion, the employer could order said employees to be temporarily instructed to wait for work at home or to work from home, but would be obligated to pay them full salary compensation.
It is also important that employers apply the same measure for employees returning from all virus hotspots, not just from China, for example, so as not to be reproached for discrimination. It is also important that workers are not impacted by any additional sanctions stemming from this kind of employer measure, such as decreased bonuses, loss of promotion opportunity and others.
According to the instructions of the Ministry of Labour, the employer can unilaterally instruct employees to work from home in extreme circumstances, when the lives and health of people is at risk; otherwise the employer cannot unilaterally order employees to work from home if it has not been determined as a possible place of work in the employment agreement. In light of the current situation, we believe the employer can issue a decree to order the employee to work from home, however, we still advise the two parties come to an agreement about the employee’s rights and obligations during the period of working from home. The work from home must also be appropriately organized and arranged in accordance with labour law legislation.
4) Can employees refuse to come to work for fear of being exposed to the virus? What about the remuneration of these employees?
Workers cannot refuse to come to work for fear of contamination if the employer has ensured the appropriate safety and health in the workplace. We do advise employers whose work process allows this, to enable these workers to use up their annual vacation days or even agree to take an unpaid leave of absence. The other option is to agree to work from home, if this is possible considering the nature of the work.
5) How should employers arrange work from home, if possible due to the nature of the work?
In light of these extraordinary circumstances and in accordance with the opinion of the Ministry of Labour on the current situation with the outbreak of the coronavirus, work from home can be organized in a simplified way. Work from home can be unilaterally ordered by the employer. This means concluding an annex or a new employment agreements is not necessary, but we do recommend that an agreement is reached with the employee in place of a unilateral decision, regulating all of the rights and obligations during the period of working from home.
The obligation of working from home can be only temporary, while these circumstances are ongoing.
In accordance with the explanation of the Ministry of Labour, Family, Social Affairs and Equal Opportunities, some obligations regarding working from home also apply in the state of emergency, which is why (even if subsequent) informing of the Labour Inspectorate is also foreseen. According to the explanation of the Ministry, the Labour Inspectorate must be informed on the work from home as soon as possible. The scope of the informing has not been prescribed by the law, however, it is sensible to inform the Inspectorate on who is performing the work from home, what kind of work is being performed, where it is being performed and how long will the work from home last. The Inspectorate can be informed via e-mail at: firstname.lastname@example.org.
6) Can an employer order employees who are suspected to have been potentially infected to use up their annual leave? What about using surplus hours?
This is a new situation, so good practices have not had a chance to develop yet. Abroad, for example in China, the practice of ordering annual leave was enforced, however, we believe this kind of ordering to take annual leave is not in accordance with the purpose of the annual leave that has been established in our legal system.
The purpose of annual leave is rest, recreation and coordinating the employees’ family obligations, so we believe the employer cannot order employees to use up their annual leave as a measure of workplace health and safety protection. Nevertheless, if the employer decides to issue collective annual leave, they should be mindful and ensure the employees still have at least some remaining annual leave left for the purposes stated above.
On the other hand, the employer can order said employee to use up any surplus hours.
7) What should the employer do if an employee becomes infected with COVID-19? What steps should the employer take in the event an employee becomes infected with COVID-19?
If an employee is exhibiting symptoms of COVID-19 (coughing, high fever) in the workplace and the recently visited areas in which an increased risk of infection has been raised, the employer should immediately inform the relevant health institution. The employer should also ensure the worker is quarantined and does not come into contact with the other employees. The employer should then follow the instructions of the relevant health institution.
The affected employee’s workspace should then be disinfected and thoroughly aired out.
If the employer becomes aware or it is confirmed that the employee has been infected with COVID-19, it is important to know this is sensitive personal data that the employer is not allowed to reveal to the other employers. The employer must therefore take care to appropriately protect the affected employee’s privacy. Here, the employer should follow the instructions of the relevant health institutions and allow them access to any necessary data regarding with whom the employee has come into contact.
The employer can then instruct the employees who have come into contact with the affected employee to wait for work from home or reach an agreement with them to work from home or instruct them to use their annual leave in accordance with any internal regulation. The employer can also exclude these employees from activities that require coming into close contact with others.
It is important to reiterate that the employer should take every possible step not to reveal the identity of the ill employee. If this is not possible, it should be considered whether the obligation of guaranteeing safety and health in the workplace and the protection of the rest of the employees prevails over the individual’s right to personal data protection.
8) What are the appropriate steps for employers once it has been confirmed that an employee or client with COVID-19 has been in the employer’s premises?
The employer should immediately consult the relevant health institutions and follow their instructions. Again, sensitive personal data should be protected, unless absolutely necessary for the protection of the wellbeing of the other employees or general public.
The employer must then perform the appropriate risk analysis and implement suitable measures relative to the situation. Employers with worker councils must include the worker council into the preparation of the measures. In some cases, employers in other countries have decided to shut down their entire operation for two weeks, while others have been trying to arrange employees to work from home.
These are completely new circumstances, so examples of good practices of employer measures will continue to develop. We advise employers to follow the instructions of relevant health institutions and hope that there will be few such cases in Slovenia.
9) What options do employers have if they cannot ensure work for their employees due to a lack of orders or supplies necessary to perform the work?
In this case, employers can order a different type and/or place of performing the work without the worker’s consent, but only during the period of the extraordinary circumstances. The employers can also opt to temporarily rearrange working hours, so as to decrease the current scope of work. In this case, the employees receive full salaries, while any unworked hours will have to be made up in the subsequent rearrangement of working hours within six months or one year, subject to the collective agreement. A further option for employers is to temporarily order the employees to wait for work at home. In this case, employers are obligated to pay the employees a compensation of 80% of the salary. An intervention act is being prepared that would enable a certain amount of subsidies for temporary wait for work at home.
It is important to add that an employer who meets the criteria will be able to claim compensation after the intervention act has been passed even if the employees had been temporarily laid off prior to its passing, pursuant to the process from the proposed act.
10) What actions should an employer take in relation to employees with younger children who are staying at home with schools and kindergartens closing?
We consider circumstances that lead to schools and kindergartens closing down and an epidemic being announced constitute force majeure. In the event of a force majeure, the employees are entitled to take a leave of absence from work. They are entitled to 50% salary compensation, but no less than 70% of minimum wage. We would like to stress here that each case should be evaluated on an individual basis to determine whether a force majeure is legitimate. We believe that only one of two parents can claim force majeure. We recommend that employers who foresee employees wishing to stay home for reasons of force majeure issue a statement, confirming the existence of said force majeure.
If at all possible, employers should organize work in several shifts, enabling their employees to adapt their family life more easily or to allow them to work from home.
11) What action should the employer take in the case of employees who are unable to come to their place of work due to the public transport system being halted? What about country borders being closed?
We consider circumstances that lead to the public transport system stopping to potentially constitute force majeure, however, each case must be judged individually. In the event of a force majeure, employees are entitled to take an absence from work. They are entitled to 50% salary compensation, but no less than 70% of the minimum wage.
In accordance with the most recent explanation of the Ministry of Labour, Family, Social Affairs and Equal Opportunity, an event that leads to the measure of a temporary ban and limitation of public transport in which public transport is halted, preventing the employee from coming to work, can constitute force majeure only when taking into account all of the circumstances that affect the employee’s inability to come to the place of work. The occurrence of a force majeure due to borders between neighbouring countries closing can also constitute the employee’s excusable absence from work.
In the opinion of the Ministry, evaluating the elements of force majeure from the aspects of the unavoidability and inescapability of the event must also consider whether this was the objective inability by the employee to come to work, whether an option exists to provide working from home or in another capacity, the possibility of securing a different mode of transport, etc.
We therefore advise employers to study the possibilities for ensuring a different mode of transport and inform the employees about it. It would also be sensible to get statements from the employees on whether they have any alternatives of ensuring a safe transport to work of their own.
Some companies have already opted for the practice of organized transport to work with buses that have been organized (this is obligatory) in collaboration with NIJZ and based on NIJZ recommendations and all safety measures. Employers can directly contact NIJZ regarding this. Some companies have also organized taxi transports for their employees or provided the company’s personal vehicles for the employees’ use. As per the explanations by the Ministry, any potential exercising of force majeure will need to be applied restrictively and all of the other options will need to have been exhausted.
We recommend employers to ensure those employees who wish to stay home for reason of force majeure to issue a statement confirming the existence of said state majeure.
12) Can an employer performing services directly for consumers claim force majeure?
We believe any intention of claiming force majeure requires a prior analysis of the situation to determine whether the case actually constitutes force majeure, as explained in answer number 11. The opinion of the Ministry of Labour, Family, Social Affairs and Equal Opportunity regarding claiming force majeure in the case of public transport bans can also be applied to determining the case of force majeure in the case of prohibiting performing services directly to consumers.
In our opinion, we are currently in a situation in which employers will have three options regarding employees who are unable to perform work:
– temporary inability to provide work for business reasons (pursuant to Article 138 of the ZDR-1), in which case the employee can be temporarily ordered to wait for work at home with 80% salary compensation;
– temporary inability to provide work for business reasons due to the coronavirus pursuant to the proposed intervention act, which will enable the employee to be temporarily ordered to wait for work at home with 80% salary compensation, for whom employers will be able to claim 40% financial refund from the state if they meet the criteria according to the intervention act;
– claiming force majeure due to the passed government decree or state measures to contain the spread of the coronavirus, based on which the employee is entitled to temporary absence from work with 50% salary compensation, but no less than 70% of the minimum wage.
Before selecting the most suitable option, employers must also consider whether it would be possible to provide different type of work for the employees. If the bases for issuing a temporary wait for work at home overlap between each other, we recommend in light of these uncertain circumstances regarding combining and overlapping different institutes, that employers issue decrees citing the several different bases and determine the compensation percentage later when the relevant institutions have passed instructions or the intervention act.