During the state of emergency and the state of alert some activities were not permitted. As the situation develops and industries are resuming activity the Government issues orders that target each type of activity that will resume and general guidelines for employers.
- General rules on the conduct of employers are included in Law no. 55/2020 that declared the state of alert. The Law allows employers to order employees to work from home, to change their workplace and work hours as long as the employees agree to these changes. Collective employment agreements remain applicable for the entire duration of the state of alert period and for an additional 90 days after the state of alert will be lifted. This will ensure stability for both employers and employees.
- Protective masks are mandatory at the workplace with the exception of employees that do not share a working space with anybody, employees that are performing activities in conditions of extreme temperatures or that require a great amount of physical activity and also employees with health conditions that may lead to respiratory difficulties. Additional individual protective gear may be required for specific employees with high exposure to risk factors. Soap and disinfectants should be widely and readily available to employees.
- The general guidelines on the employer and employee conduct during the state of alert were introduced by the Joint Order of the Minister of Employment and the Minister of Health no. 3577/831/2020. The order includes a series of mandatory obligations for the employer on how to organise the activity during the state of alert such as ensuring the existence of special access corridors for employees that are designed to reduce congestion at the entrance, or the proper cleaning, disinfecting and venting working spaces. The order recommends employers with more than 50 employees to use individualised working hours that allow employees to start work at 3 different hours. The employer must properly inform the employees on the safety rules that are mandatory during the state of emergency and should ensure that the employees follow the mandatory rules. The order gives general guidelines on how the employer should act in case of suspicion of infection with COVID-19 or in case of confirmed infection with COVID-19, including how and when the workplace could be reopened. The order also includes a series of obligations for the employees regarding their individual conduct. The employers will check the temperature of all employees at the beginning of the working program and will not allow any employee that has a temperature higher than 37.3°C to enter the workplace. Also the employer will not allow any employee that presents respiratory infection symptoms to enter the workplace.
- The general guidelines for the activity performed by employees in open space areas were introduced by the Joint Order of the Minister of Economy and the Minister of Health no. 1731/832/2020. Employers are also recommended to use individualised working hours. All common areas should be disinfected every 4 hours, employees that use desks that are facing front to back or back to back should have at least 1.5 m between them and employees that use desks that are facing front to front should be separated by screens that should be disinfected every day. Lunch breaks will be organised in such a manner that if the employees use a common space they should be at a distance of at least 2 m of each other. The same Joint Order introduces rules on how hospitality facilities should be organised and on how self-care facilities that are allowed to function should be organised.
- Orders regulating other industries such as transport, dental care, education, or sports were also issued when a specific activity was allowed to resume.
All new normative acts are published in the Official Monitor available at http://www.monitoruloficial.ro/article–e-Monitor–339.html. In order to stay up-to-date on this fast paced area of the law, the Official Monitor should be checked daily.
Employees that had their individual employment agreement suspended due to direct or indirect measures taken in order to limit the risk of Covid-19 infection were granted an indemnity of 75% of their salary but no more than 75% of the average monthly salary for 2020 during the state of emergency period. This indemnity continued to be granted to affected employees in industries that are not yet reopened even after the state of emergency ended.
- The state also subsidises part of the salary for the employees that resume their activity after the suspension of their individual employment agreement. The employer can receive from the state 41.5% of the employee’s salary for up to 3 months after the employee resumes the activity if that employee was suspended for at least 15 days. The employer should not dismiss the employee until 31st of December 2020 in order to benefit from this state aid, with the exception of employers that have seasonal activities. Employers that hire individuals over the age of 50 years that were dismissed as a result of the pandemic can receive 50% of the salary of their new employee, but no more than 2.500 lei, for 12 months if they continue the employment for a minimum of another 12 months. The same state aid is available for employers that hire unemployed individuals (that are registered as such at the Unemployment Authority) between 16 years and 29 years and also for employers that hire Romanian nationals that were dismissed for reasons that are not related to their conduct by foreign employers while working in a foreign state. Employers that do not comply with the requirement of maintaining the employment for the required duration will return the amounts received from the state plus the legal interest rate.
- Additional benefits such as prolonged terms for the payment of state and local taxes were also granted to companies in order to limit the effects of the pandemic.
As mentioned the use of protective masks is mandatory at the workplace with the exception of employees that do not share a working space with anybody, employees that are performing activities in conditions of extreme temperatures or that require a great amount of physical activity and also employees with health conditions that may lead to respiratory difficulties. Additional individual protective gear such as gloves and face shields might be required in certain cases.
- The employer should check the temperature of the employees at the beginning of the work day and employees that have a temperature higher than 37.3°C will not be allowed to enter the workplace as will be the employees that have respiratory infection symptoms. The employees are required by the Joint Order no. 3577/831/2020 to accept the temperature check.
- Social distancing rules are also functional at the workplace, with some specific regulations such as the following requirements: open space offices where employees that are positioned front to back or back to back should be distanced at least at 1.5 m and employees that are positioned front to front should be separated by protective screens and cafeterias where employees should be distanced at least at 2 m of each other. The social distancing rules apply also to the transport of the employees.
- In order to further protect employees that interact with a large number of individuals (such as supermarket workers), protective screens might be required. Working spaces, common use areas (such as locker rooms and cafeterias) frequently touched surfaces and shared tools should be regularly disinfected. When possible the rooms should be ventilated. Employees that resume activity will be retrained regarding their health and safety. Health and safety procedures and general plan should be revised in order to limit the specific risk for each employer.
- In addition to all the legally mandatory health and safety measures the employers can also limit the travel of their employees to only urgent and necessary cases, cancel previously booked training courses that are not mandatory, reduce the number of employees that are included in team activities, organise meetings using electronic tools. The employer can also restrict access to certain areas for certain employees.
Teleworking is highly recommended by authorities. During the state of emergency the employer was exceptionally allowed to order their employees to work from home without their consent and without an addendum to their individual employment agreement. During the state of alert the employer can still order the employee to work from home, however now the employee must consent. The decisions issued during these periods included details on how teleworking will be implemented, working hours, how the employees will report their daily activity, how the employer can check the employee’s activity, how the employee should organise their home workspace in order to comply with health and safety requirements, how the employee should handle confidential, private or sensitive data, what devices and apps could or should be used during teleworking. From May 15th employee consent is mandatory, most employers opted to sign addendums to individual employments agreement in order to keep teleworking as an option for the future even after the state of alert ends. Teleworking was widely used even in companies where this type of activity is uncommon.
- Employees that are quarantined are self-isolating for mandatory legal reasons or have tested positive for COVID-19 all benefit from paid sick leave. During this time their individual employment agreement is suspended and they receive an indemnity of 75% of their salary. For the initial 3/5 days the indemnity is paid by the employer, the rest is paid by the national health fund. Since all positive cases are admitted to hospitals, employees will not benefit from sick leave for childcare as they would for any other medical condition of the child (the child will be in hospital and the parent will not be allowed to stay with the child).
- Employees can express their concern on specific health risks and the employer should analyse those claims however the employee cannot legally refuse to work based on these concerns. If the employee does not perform their activity they are not entitled to their salary and most employers have internal regulations stating that after a certain number of days of absence the employee can be dismissed for disciplinary reasons.
- If an employee tests positive the authorities will notify the employer of the positive result in order for the employer to take all the mandatory actions required, including notifying all other employees that were in close contact with the employee that tested positive. The identity of the employee that tested positive will not be disclosed to other employees that were not in close contact for confidentiality reasons.
- Parents were entitled to paid time off in order to care for their children under the age of 12 years during the school year, because all schools were closed from the 12th of March. The parent that was granted paid time off received an indemnity of 75% of their salary but no more than 75% of the average daily salary. The school year ends on the 12th of June and after that the parents will not be granted paid time off.
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
According to the Labour Code the employer can suspend individual employment agreements due to the temporary reduction of Company activities or to a temporary lockout of the Company. The reduction of activity or the temporary lockout both have to be caused by economical, technological or structural reasons, or by other similar reasons. The current socio-economic situation is considered a justified reason. During the suspension the employer should pay an indemnity of at least 75% of the employees’ basic salary. Also the employers can reduce the weekly work time from 5 working days to 4 working days with a corresponding reduction of the salaries, if the reasons for the reduction of the activity span for more than 30 days. These are general rules that do not depend on the pandemic situation.
- Salary reductions
Salary is an essential part of the employment agreement and can only be reduced with the consent of the employee by signing an addendum to their individual employment agreement.
Both individual and collective dismissals can be used during this period without special restrictions. However the employer must still observe all mandatory rules when they make positions redundant. In cases where the employer benefited from state aid the dismissal is not forbidden, the employer is only required to return the amounts received and the legal interest rate if they did not keep the employment for the required period of time.
- Facility closure
No specific limits on facility closures due to the pandemic.
Employers are recommended to include in their internal regulations provisions that allow them to implement specific rules during exceptional situations (such as restricting access to specific areas, requiring employees to take additional safety measures, limit contact between employees). The newly included provisions should be general enough to be able to be enforced in different types of situations but also specific enough to be useful when exceptional situations might arise.
It is recommended for employers to negotiate with employees individualised working programs (the employee starts the working program at different hours) or uneven working programs (the employee works for a different number of hours each day, within the limits of the 40 hours/working week), in order to limit contact between employees and the time spent in common spaces.
Teleworking, if possible, should continue even after the epidemic situation is no longer urgent. This practice in the long-term can be used as a cost cut measure as the company will require smaller workspaces.
A good practice is to use stable work teams for specific assignments and to limit the interaction between work teams. In person meetings should only be organised if absolutely mandatory. During collective negotiations the negotiating teams should be limited to fewer participants for each meeting.
As mentioned the employers can limit work-related travel to only essential and urgent cases and they can also postpone training or identify training options that can be done through electronic means.
When hiring new employees it is recommended to use the maximum legal trial period, as during a trial period an employee may be terminated without cause. In addition, it is recommendation is to use fixed-term employment if possible.
If you have any questions, please contact the following representative:
Associate, Volonciu & Partners
+40 372 755 699