It is a question that concerns each of us, both employees and employers, given the emergency situation we face as a result of the spread of coronavirus.
From the analysis of the provisions of labour law, employment relationships may face the following situations:
Providing work at home
Depending on the activity carried out, both the employees and employer may agree, by signing an addendum to the individual employment contract, for the employee to perform work from home, under the terms of Article 108-110 of the Labour Code.
Another way to adapt to the new conditions established by the state of emergency is telework. In this situation, by signing an addendum to the individual employment contract, the employer and the employee establish that the employee would perform work, including from home, but only by technical means (computer, telephone, internet) in accordance with the provisions of Law no. 81/2018 on the activity of telework.
Suspension of the individual employment contract in the event of the establishment of the quarantine
There is also the possibility of legal suspension of the individual employment contract in the case of employees in quarantine. They are entitled to an allowance of 75% of the average gross monthly income in the last 6 months, up to a limit of 12 gross minimum wages per country per month.
Leave and quarantine allowance shall be granted on the basis of medical certificates issued by the specialized bodies of the Public Health Directorates.
Importantly, during the suspension of the contract following the establishment of the quarantine, employees may not be dismissed in accordance with the provisions of Article 60.(1). point (b) of the Labour Code.
Suspension on the employer’s initiative of the individual employment contract in case of temporary interruption or reduction of activity for economic, technological, structural reasons
This situation is referred to in the doctrine as ‘technical unemployment‘, in which case the employer may unilaterally suspend the individual employment contract without ceasing employment relations with employees, a situation expressly regulated by Article 52.(1). point c) of the Labour Code.
The law provides two situations, namely:
- temporary reduction of the activity, i.e. the working hours from 5 days to 4 days a week, with the corresponding reduction of salary, until the situation that caused the reduction of the program is remedied, in this case the exit from the declared state of emergency
- interruption of the activity, in which case the employees no longer carry out the activity.
It should be noted that in both cases, both employees who no longer perform activity and those who are involved in the reduced activity benefit from a diminished paid from the salary fund, which may not be less than 75% of the basic salary corresponding to the job occupied.
Legal suspension of the contract as a result of ”force majeure”
Such suspension by law of the contract implies the existence of the case of ”force majeure”, as defined in Article 5 of the Labour Code.
”Force majeure” must be declared and qualified as such in relation to the factual situation existing at that time and requires that employees no longer engage in activity as a result. Thus, the employment relationship is suspended, the employee no longer provides work for the employer, nor receives salary or any other type of allowance.
Irina Postelnicu – Lawyer
R&R Partners Bucharest
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