Rights and obligations of employers during a national emergencyIn light of the enacted measures against the spread of the coronavirus (COVID-19) certain questions arise regarding the rights and obligations of employers in relation to their workers.
Under Bulgarian law national emergencies have clearly defined constitutional dimensions and, simply put, the relevant texts do not specifically address issues relating to the work activities of citizens. For this reason, one must look for an answer in the Order of the Minister for Health which was issued in relation to the declared emergency.
The order basically stipulates that all employers, if the work provides for it, must let employees work from home. For those kinds of work where this isn’t possible, there has to be strict hygiene measures. Furthermore, people with occurrences of acute infectious diseases must not be let onto the employer’s premises.
Obviously, employers must comply with this order, but this is not always so easy.

Our Employment Code (EC) stipulates that the employee must work at the employer’s premises. For the reason the employer may not simply unilaterally decide to make the employee work from home if this is not already envisaged in the worker’s contract. There are, however, certain legal instruments established in the EC.
Art. 119 EC makes it possible for the parties to change the contract for a specified or unspecified amount of time. This is done via a written annex. As such, a “home office” environment may be instituted for the worker. This is possible for those employees who do their work via information technologies.
If such technologies are not used, there is also the legal figure of “home work”. This can be applied to cases where the employee’s obligations consist of making a product and/or delivering a service in his or her home or at another location of his or her choice. If you choose this arrangement, be sure to keep the appropriate documentation for all of your employees that are engaged in this type of work.
Through this annex the parties may also lower the employee’s hours. Such employees cannot be put in a disadvantageous position to other employees who work full time at the same or a similar position.

If the nature of the work does not allow for this institution of these types of arrangements, the employer must enact additional measures which exist on top of his general obligation to create a safe and healthy work environment. According to the Ministerial Order, these are increased measures against anti-epidemic measures, including filters, disinfection, regularly opening the windows, as well as giving instructions on personal hygiene to the staff.

Many businesses may find themselves in a position of less work available due to the decreased demand for their services during the epidemic. For those whose work falls within the scope of the Order’s prohibitions, this is sure to be the case.

How can employers react to this situation?

If workers in a certain section of an enterprise are left without anything to do, then that worker is in a state of “idle time”. What can an employer do in relation to these employees?
First, he may task them with a different kind of work in the enterprise. However, the work must be in accordance with the employee’s qualification and health condition.
Secondly, should the state of idle time continue for more than 5 days, the employer may oblige the employee to use his or her paid leave by issuing a written order and giving it to him/her.
Thirdly, if the situation continues for more than 15 days, the employer may terminate the contract by giving a month’s notice (unless a longer period is established in the contract). If he wishes to terminate the contract immediately, the employer must pay the worker his or her salary for the respective period.
In any event, given that the state of idle time is not due to an act of the employee, he or she has to right to remuneration for that period.

The employer may also unilaterally lower the employee’s hours should the work volume fall. This cannot be done for a period that is longer than 3 months for each calendar year. The hours thus established must be no shorter than the median legal hourly duration for that job. For example, if the employee works the standard 8 hours per day, after this reduction his or her hours may be reduced to no less than 4.

Although the Ministerial Order obliges the employer to bar the entry of any individual with occurrences of an infectious disease, there is nothing in the current legal regime that allows the employer to inspect the workers’ health. As such the employer must rely on official documents issued by a doctor. The employer does not have the competence to determine whether the employee is indeed sick. Until then, the employer cannot legally prohibit the employee from entering the work premises and doing their job.
At the moment the government is debating a liquidity boots provided by the Bulgarian Bank for Development, as well as the possibility for all business affected by a decrease in demand or by problems in the supply chain to apply for financial assistance at the Employment Agency, instead of firing workers. The proposal which the government has made is for a financial stimulus equal to 60% of the employees’ current remuneration as a short-term crisis measure.

In conclusion: the most important points to take into account:
1. The optimal case is to modify the work contacts by mutual agreement via the annex envisaged in Art. 119 EC. In order to preserve the employee’s long-term interests, you may consider making these changes temporary.
2. The general principal is that when the worker cannot do his or her work due to reasons that lay outside of his or her control, that worker’s remuneration cannot be affected by these circumstances.
3. As things currently stand, there is no mechanism that allows the employer to check if the worker suffers from a contagious disease.
The employer may only establish with an official document from a doctor. Until such a document is issued, the principle is that the employer cannot bar the worker from entering into his or her workplace in order to perform his or her job.

Vladimir Slavov

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