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Relations between Employer and Employees in Time of State of Emergency

covid19

RELATIONS BETWEEN EMPLOYERS AND EMPLOYEES IN TIME OF STATE OF EMERGENCY 

By virtue of a decision dated 13 March 2020, the National Assembly of Republic of Bulgaria declared a state of emergency for a period of one month, namely until 13 April 2020. For the period of emergency, which may continue beyond the originally announced date, various measures have been introduced to prevent, limit and overcome the effects of the coronavirus COVID-19. Part of the measures introduced are directly related to employers and employees on the territory of the country.
It is envisaged that all employers, depending on the specifics and capabilities of the respective work activity, introduce a remote form of work for their employees. Where this is not possible, employers organize enhanced anti-epidemic measures in the workplace.
The aforementioned measures raise a number of issues related to the organization and payment of the work process. We present a brief summary of possible solutions below.

I. Continuance of the work process
1. Remote working

In view of the introduced measures, employers should evaluate the specifics of their activities and, if possible, introduce remote working for their employees.
Remote working is a form of organizing the work process outside the employer's premises through the use of information technology. In business, this form of organization is known as "work from home" or "home office." According to the legislation, in the case of remote working the employer is obliged to provide at its own expense the necessary equipment for carrying out the remote working, as well as the conditions for its functioning, including software, technical maintenance, internet connectivity, etc.
The employer is also responsible for the provision of safe and healthy working conditions for employees working from home. In this connection, the employer is obliged to inform the employees about the requirements for the organization of work and about the safe and healthy working conditions in accordance with the applicable legislative acts, collective agreements, the internal rules of the company, the company safety and health policy at work and all the requirements and rules related to working with video displays.
According to the Labor Code, remote working is settled by mutual consent between the employer and the employee in an individual or collective employment agreement. This implies the explicit settlement of various issues, such as the procedure for assigning and reporting work, the allocation of working time, the possibility of excluding overtime and night work, etc. In a state of emergency, remote working may be introduced by order of the employer, who shall notify employees of the specifics and organization of the work process. It is recommended that employees express in writing that they are familiar with the order and agree with the specifics and organization suggested by the employer.

  2. Work from the premises of the employer
In cases where it is not possible to introduce remote working in view of the specifics of the work process, employees may continue to fulfil their work obligations from the premises of the employer. This should be done with strict application of anti-epidemic measures in the workplaces, including filter, disinfection and ventilation, instruction in observing personal hygiene of staff, non-admission of employees or outsiders with signs of acute infectious diseases. The non-admission of employees to work is sensitive topic, insofar as a possible dispute will determine whether the non-admission is justified in view of the fact that the employer is not a medical person and does not have the authority to assess the health status of the employee. If the non-admission of work is found illegal, the employer and the guilty officials shall jointly and severally pay the employee compensation in the amount of the gross remuneration for the time of the unlawful non-admission.
An additional measure that an employer may introduce is the establishment of part-time work for employees in compliance with the rules of the Labor Code. According to the Labor Code, the duration of part-time work may not be less than half of the statutory one for the calculation period, that is, for a 40-hour workweek, the work time may be reduced to 4 hours per day. Remuneration for part-time work for the relevant period shall be made in proportion to the agreed full-time remuneration.
If an employee refuses to attend work, he or she can apply for use of paid or unpaid leave, with the employer considering whether to allow or deny the use. It should be borne in mind that the employee has the right to refuse to perform their work in the event of a serious and imminent danger to their life and health, in which case they continue to be entitled to gross remuneration. Whether there is a serious and imminent threat to the life and health of the employee should be evaluated on a case-by-case basis.

II. Suspension of the work process
Part of the measures taken to limit the coronavirus require certain employers to suspend their activities. At the moment these are: entertainment and gaming halls, discos, bars, drinking establishments, coffee shops and large shopping malls, with the exception of banking and insurance offices, grocery stores and pharmacies. With regard to the employees at these sites, the work process must be suspended.
Suspension of the work process is known as downtime. According to the Labor Code, in case of a downtime of more than 5 (five) working days, the employer is entitled to grant paid annual leave to the employee without his or her consent. The grant of paid annual leave is performed by virtue of written order of the employer, which should be made known to the employee. In this regard, each employer should consider if they could communicate with their employees via electronic means and whether sending orders electronically can be considered valid presenting to the employee – this depends on the arrangements for each specific employment relationship (individual employment agreements, internal rules and policies of the employer, etc.).

III. Termination of employment agreements
Current labor legislation provides various grounds for termination of employment agreements unilaterally by the employer. Such grounds are termination within the probation period, reduction of workload, staff reduction, suspension of work for more than 15 (fifteen) days, closure of the company or part of it, etc. There are grounds for termination, such as the termination of employment within a probation period in favor of the employer, which do not require implementation of complex procedures. However, most of the grounds for unilateral termination require careful analysis of the factual situation and strict adherence to formal procedures (e.g. recruitment, requesting information on the grounds for protection against dismissal, requesting prior permission from the respective protection authorities, mass redundancy procedures, etc.). Failure to comply with these procedures could result in the unlawfulness of the dismissal and/or sanction by the authorities.

If you have any questions regarding the application of the above procedures or other employment matters, do not hesitate to contact Colliers' experienced Legal Advisory Department. Send us your enquiry at bulgaria@colliers.com or call + 359 896 777 654. 

 

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Vesselina Trionova joined Colliers International in October 2006 as Legal Counsel. She has been a member of the very successful legal team, providing professional legal consultancy solutions to all company departments and Legal Advisory Services to corporate clients.

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Prior to joining Colliers, Snejana worked as a Legal Advisor at KPMG in Bulgaria, providing legal services to national and foreign clients in the field of commercial, employment and contractual law. In the field of employment, she participated in various procedures for implementing home-office policies, summarized calculation of the working hours, programs for additional training and qualification. She was also engaged in procedures for staff reduction and reorganizations of employment.

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