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March 18, 2020
Alina Pena

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The state of emergency and its implications in the labor field

In the context of the COVID-19 epidemic, both of the employer and employee have to know their rights and obligations and also the measures that have to be taken in order to protect the employees and the company and to minimize all the risks that can appear during the epidemic period. 

Hereinafter, the main legislative amendments issued in the field of work will be presented briefly.

Applicable law:

  • Law no. 19/2020 concerning the days off granted to the parents in case the educational establishments are closed temporary; 
  • Presidential Decree dated 16.03.2020;
  • In addition: the Labor Code regarding the working from home and the Law no. 81/2018 regarding the tele-working.

Duration of the provisional measures: 

  • Law no. 19/2020: as long as the educational establishments – where the kids of the employees are enrolled – are closed; 
  • Presidential Decree: until the end of the state of emergency. 

According to the Law no. 19/2020, as long as the educational establishments – where the kids of the employees are enrolled – are closed, the employer has the following obligations: 

  • to grant days off and to pay to the parent/person in charge with the supervision of the minor an indemnity of 75% of the salary corresponding to a working day, but not more than 75%/working day of the gross average salary used for the implementation of the state social insurance budget; 
  • the indemnity of 75% will be paid from the personnel costs of the budget of incomes and outcomes of the employer; 
  • the indemnity shall be paid to one parent only;
  • the parent/person in charge with the supervision of the minor must meet cumulatively the following conditions: 
  • to have children under the age of 12, enrolled in an educational institution or disabled children under the age of 18, enrolled in an educational institution; 
  • the workplace does not provide the possibility to work from home or the tele-working;
  • the law does not provide if the calculation base for the indemnity of 75% consists in the last month salary or an average of a number of months; 
  • the number of the days off will be established by Governmental Decision;
  • to the employees that work in the national energetic system, nuclear system, in workplaces with continuous work, medical units and social assistance, telecommunications companies, radio companies and public television,  railway transport, public transport and sanitation, and also in the units which provide electricity, heat and power, the days off will be granted with the employer`s approval. 

According to the Presidential Decree dated 16.03.2020: 

  • the provisions of the Law no. 19/2020 are not applicable to the employees who work in the national defence system, prison, public medical units and other categories laid down by the order of the Internal Affairs Minister, Economy, Energy and Business Environment Minister, Transportation, Infrastructure and Communication Minister. This employees have the right to a raise salary in the amount provided by the Law no. 19/2020 (75%) in case the other parent does not benefit from this legal provisions.
  • the decree regulates a derogation from the provisions of Law no. 81/2018, respectively, until the end of the state of emergency, the employer – whether private or public – can decide unilaterally the home-working or the tele-working. 
  • until the end of the state of emergency, there will be no control from the Territorial Labor Inspectorates, excepting the controls made by the Labor and Social Protection Minister and by the Labor Inspection in certain cases (commission of offences with higher social danger level and investigation of work accidents). 
  • until the end of the state of emergency it is prohibited any kind of collective labor dispute in certain areas. 
  • the collective contracts and agreements are maintained until the end of the state of emergency. 
  • the decree regulates a derogation from the provisions of Governmental Emergency Ordinance no. 111/2010 concerning the leave and the monthly indemnity for childcare – the person entitled will keep the incentive insertion in case of losing the job because of COVID-19 epidemic. 
  • the requests in order to obtain the social benefits can be send by electronic means. 
  • the validity of the certificates (including the ones regarding the disabilities) or attestations issued in the field will be extended until the end of the state of emergency. 

Working from home is regulated by the Labor Code (art. 108-110). The main provisions are: 

  • this kind of employees are the ones who are performing the specific tasks from home; 
  • working from home may be performed by any type of employee; 
  • the agreement in case of working from home must be registered in Revisal; 
  • the employees can establish their own working schedules; 
  • the employer must ensure the labor safety and security for its employees, in any aspects connected to the activity they perform; 
  • the employer may control the activity of the employee, the resources he uses and the resulting deliverables; 
  • as a rule, in the employment contract the parties have to mention the working at home procedure; the Presidential Decree stipulations are a derogation to this provisions;
  • the employer has the obligation to handle the transportation of the raw material to the employee and of the final work made by the employee; 
  • the parties/the employer (presidential decree) can establish more rules applicable in this procedure. 

The teleworking procedure is regulated by the Law no. 81/2018, which provide: 

  • tele-working is a form of organization of work in which, at least for one day per month, the work may be performed from another place than the working point of the employer, and it may be performed by an employee, regularly and voluntarily, with the help of technology information and communication;
  • the person working this way is called a tele-employee; his individual labor agreement has to provide the tele-working procedure and the places where the activity is going to be performed, and also the obligation of working this way at least one day per month;
  • the working schedule shall be established by mutual agreement between the employer and the employee and the over-time may be performed only with the written agreement of the tele-employee who works full time.
  • the tele-employee has the obligation to draft the timesheet for the performed activity.
  • the employer must ensure the technical means for information technology and communication and safe working equipment, must install and verify the working equipment and also to ensure the appropriate training of the employee for the specific field.

According to art. 3 from the Law no. 81/2018: the refusal of the employee to perform the tele-work cannot be considered a reason in order to unilaterally modify the individual employment contract and cannot be subject to any disciplinary measures. 

However, the employers may rely on the provisions of the Presidential Decree dated 16.03.2020 which establish that an employer can unilaterally modify the individual employment contract, stating that the work will be performed at home or under the tele-work regulations. 

In addition to this, the art. 48 from the Labor Law provides that an employer can unilaterally and temporary modify the place and the type of work, without the consent of the employee in the event of force majeure or as a measure to protect the employee. 

The quarantine means the preventive isolation of a person or collectivity which has been in contact with an infected patient or who comes from a region where there is an epidemic. 

According to the legislation in force: 

  • the employer cannot request to the employee to take the annual leave during the quarantine period; 
  • during the quarantine period, the employer cannot dismiss the employee;
  • according to the Labor Code (art. 50), the individual employment contract is automatically suspended during the quarantine period; 
  • the Governmental Emergency Ordinance no. 158/2005 state that during the quarantine period the employees will have a special indemnity; 
  • the monthly indemnity is 75% from the calculation base, determined as an average of the monthly salaries granted in the last 6 months from the 12 months (length of contribution), up to the limit of 12 minimum gross salaries in the country; 
  • the quarantine indemnity will be paid fully from the Unique National Fund of Health Insurances; 
  • in case an employee is tested positive for COVID-19, he has to submit a certificate issued by the Public Health District Authority; 
  • the certificate for the medical leave can be issued by the attending doctor or by the family doctor; 
  • the leave days will not be deducted from the annual medical leave of the employee. 

The measures that an employee can take in order to protect its employees and activity of its company during the epidemic period: 

  • the modification of the work program by adapting it to each activity and employee; 
  • establishing several work teams in order to ensure the continuity in front of the clients/partners; 
  • granting the protective equipment, together with training held to the employees regarding the conduct they must have during the “crisis” period, in order to prevent and minimize any kind of risk; 
  • implementation of the working at home and tele-work procedures; 
  • reduction of the working time and therefore reduction of the salaries;
  • technological unemployment – temporary cessation of activity; In this case, according to the law, the employees will receive a compensation of 75% of the basic salary corresponding to the position held.