Coronavirus – key considerations for employers in CEE

The situation with Covid-19 (Coronavirus) is still developing, but there are some key issues that employers should be aware of. Below we present guidelines for the CEE region.

1. Can the employer order an employee who visited a region/country exposed to coronavirus infection to take additional medical examinations?

Bulgaria

A Bulgarian employer cannot force an employee to undergo a medical examination. Currently, if an employee undergoes a voluntary medical examination without having any symptoms, the test for Covid-19 will be at the employee’s expense. An employee can take an examination during working hours as according to the law, employees have a right to absence from work for a compelling medical examination or check, quarantine, suspension from work at the instruction of the health authorities, etc. Such absences are authorised by the competent health authorities (a sick leave certificate has to be issued). Employers pay 70% of the employee’s average wage for the first three days of each sick leave absence period. For the rest of the period, the employee receives sickness benefit from the state.

Czech Republic

Yes, the employer is entitled to order an employee, with whom there are health concerns, to undergo an extraordinary medical examination. The examination must be done by the employer’s provider of occupational health services and is paid for by the employer. The examination should be done during work hours and the employee is entitled to compensation for lost income. We encourage employers to consult their providers of occupational health services in advance to agree on implementing pre-emptive measures and on the procedure of taking care of these employees.

Hungary

An employer may order an employee to undergo an extraordinary medical examination. This examination can be ordered during working hours as the employee can be exempted from his/her obligation to work for the duration of the examination. For that duration, the employee is entitled to an “absence fee”, which in practical terms is typically identical to the base salary. The costs of the examination must be borne by the employer.

Poland

An employer cannot order employees to undergo a medical examination due to an increased risk of coronavirus. The Polish Labour Inspectorate supports this view.

Romania

The employer cannot force an employee to undergo an additional medical examination, i.e. a medical check additional to the mandatory annual check, when the employee returns from a region/country exposed to the coronavirus. However, as per recent health measures adopted by the Ministry of Health regarding the prevention and limitation of the coronavirus epidemic, individuals entering Romania and returning from a region/country exposed to the coronavirus have the following obligations:

• If the individual does not have any symptoms, the individual will be placed in quarantine for 14 days in special locations made available by the local authorities.
• If the individual returns from a region/country exposed to the coronavirus but not registering an epidemic region (as such regions/countries are listed by the Ministry of Health and continuously monitored), they are obliged to self-isolate at home for 14 days from the date of return.

These individuals are entitled to medical leave as per the rules of the local employment law. In particular, they must notify their employer of the occurrence of the medical event leading to the sick leave.

Russia

As a general rule, an employer cannot order an employee to undergo an additional medical examination. However, the employer can ask the employee to do so with the employee’s consent. Most probably, the employer will have to pay for the examination and pay the full salary to the employee, as otherwise the employee would simply refuse to undergo the examination.

However, in Moscow, based on a Decree signed by Moscow Mayor on 5 March 2020 (Decree), the employers should ensure that employees’ body temperature is measured at workplaces.

Slovakia

Yes, the employer is entitled to secure extraordinary medical examination in cases of justified doubts about the health of an employee, subject to negotiations with the employee’s representatives and a doctor. The employer must cover all expenses. The employee is obliged to undergo such medical examination; the employer must provide the employee with the necessary time off and pay salary amounting to his/her average earnings for the time of the mandatory medical examination.

Ukraine

No, an employer cannot make an employee undergo a medical examination unless required by law. The employee visiting the regions exposed to the coronavirus does not trigger a requirement to undergo a medical examination as part of their employment obligations.

2. Can an employer ask an employee who visited a region / country exposed to coronavirus infection to temporarily work from home?

Bulgaria

Although officially there is no such legal mechanism, in practice this is not impossible if the employer continues to pay the employee’s full salary. An employee can in theory refuse although in practice the risk is not high, as long as the employee receives full salary during that period.

However, if an employee comes to work in a condition which does not allow him/her to perform his/her duties, even if the employee has not been diagnosed, the employer is entitled to suspend the employee from work until the latter has recovered his/her ability to work. No payment is due for the period of suspension in this case. This does not apply if nothing in the employee’s condition impairs him/her from performing his/her obligations, unless, as mentioned below, the employee has a validly issued sick leave certificate.

Czech Republic

Employers cannot force an employee to work from home, unless such possibility was previously agreed between both parties. Both the employer and the employee have to agree on working from home.

Hungary

Under Hungarian law, home working means that the employer temporarily transfers the right to choose the place of work to the employee. However, it does not mean that the employee can unilaterally be obliged to make his/her place of residence suitable for work. Accordingly, the employee may choose to perform work from home, but he/she cannot be obliged to work from home. An alternative option is teleworking, when the employee regularly performs his/her activities by electronic means at a place separate from the employer’s premises. Teleworking requires the explicit agreement of the parties, i.e. the employee cannot unilaterally be instructed by the employer to perform telework.

We also note that, if based on objective criteria, the employee could jeopardise the maintenance of safe and healthy working conditions of other employees, and the employer’s work safety-related obligations may have priority. Subsequently, employers should handle the current situation with the utmost care, as employees may have future claims against the employer resulting from the employer’s passive or negligent attitude.

Poland

In our opinion, the employer can ask such employee to work remotely from home and the employee cannot refuse. This would be justified by the employer’s duty to ensure health and a safe work environment, and by the unusual circumstances of the coronavirus threat.

The employer and the employee should agree the conditions of remote working. In addition, regular employment rules should be observed during home working and the employee should retain the right to his/her regular salary.

New legislation on coronavirus is in the pipeline and might modify some of these rules.

Romania

The local employment rules do not grant the employer the right to force the employee to temporarily work from home when returning from regions/countries exposed to the coronavirus.

However, the employer may give the employee the option to work from home temporarily; in such case, it needs to ensure that: (i) the employment agreement includes specific provisions regarding working from home; (ii) the employer makes available to the employee all equipment and materials needed to work from home; and (iii) the employer is able to control the employee’s activity carried out at home.

In addition, as preventive measures regarding health and safety at work, the employer should adopt internal policies including travel recommendations and other protective measures in this respect.

Russia

The employer can ask (but not order) the employee to temporarily work from home. However, if the employee has a regular contract to work from the employer’s premises, the employer will bear work safety risks related to working from home. The employee has the right to refuse to work from home.

In Moscow situation is specific: based on the Decree, citizens who returned from China, South Korea, Italy, Iran, France, Germany and Spain should stay at home for two weeks. They should not attend work, study and, if possible, public places. The employers in Moscow should help their employees to comply with quarantine at home. We suppose that based on the Decree employers in Moscow can insist on either work from home or sick leave for employees who visited the exposed region.

Slovakia

The employer cannot order an employee to work from home, unless such possibility was previously agreed between both parties. Both the employer and employee have to agree on working from outside the agreed place of work, e.g. from home. As this is an agreement, the other party is not obliged to accept the change of the place of work.

Ukraine

Yes, the employer may ask an employee to work from home but the latter may refuse, unless the ‘work from home’ condition is in the employee’s employment agreement. If there is no ‘work from home’ provision in the employee’s agreement but he/she agrees to work temporarily from home, it should be documented in an order signed by the company’s authorised officer (e.g. director) and the employee. If there is no ‘work from home’ condition in the employee’s employment agreement and he/she refuses, the employer cannot impose this requirement on the employee.

3. What if the employer decides to close its office/plant due to the coronavirus threat? Would the employees still be entitled to their salaries?

Bulgaria

If the employer decides to close the office/plant due to a coronavirus threat, the employees will be entitled to their salary.

Czech Republic

Closing an office/plant constitutes an impediment to work on the part of the employer. During this period, employees are entitled to salary compensation of 100% of their average earnings and are not obliged to perform work.

Hungary

If the employer does not employ the employee during his/her scheduled working time, the employee remains entitled to his/her base salary, unless the lack of employment is due to unavoidable external reasons.

If there is an official measure (quarantine, etc), we are of the view that it may qualify as an unavoidable external reason, i.e. the employee is not entitled to his/her salary. On the other hand, if the employer sends the employee home without such unavoidable external reason, the employee must be paid his/her base salary.

Poland

Yes, the employees would be entitled to receive their salaries. There might be some variations depending on a specific system of remunerating an employee (hourly, monthly, piece rate).

Romania

If deciding to close the office/plant, the employer may:

• unilaterally decide the temporary closure of activities for objective reasons such as force majeure or other unforeseeable circumstances. In such case, the employees:(i) are obliged to make themselves available to the employer at any time in case the employer decides to resume its business; and (ii) will be entitled to an indemnity of at least 75% of their salaries;
• mutually agree with the employees the suspension of their employment; during the suspension of employment, all rights and obligations will freeze and thus no salary rights will need to be paid.

Russia

The are no direct grounds in current Russian law that allow an employer to close the office/plant due to the coronavirus threat. Theoretically, if the employer wanted to close the office/plant, it could try to formalise such closure on “idle time” grounds. The employees would be entitled to two-thirds of their salaries for the whole period of the idle time.

However, in Russia idle time is used during technological, organisational and similar problems that stop work/production. An epidemic threat is not listed in the current laws as one of those grounds. The employees may try to challenge the idle time in court. If the employees win, the employer would have to pay them 100% of their salaries for the whole period of the idle time. The employees may also file a complaint with the State Labour Inspectorate on illegal idle time. If the State Labour Inspectorate considers that the idle time was illegal, it may impose an administrative fine on the employer or its responsible officer.

Slovakia

The closure of the office/plant due to a coronavirus threat would be considered as an obstacle to work on the part of the employer, which prevents the employee from performing his/her work obligations and thus the employer must pay him/her salary of his/her average earnings.

Ukraine

In this case, the shutdown of the office would have to be announced and documented by an order signed by the employer’s authorised officer. The reason for the shut-down is a threat to the employees’ health. In this case, the employees would be entitled to their full salary.

4. Can the employer send an employee who visited a region exposed to the coronavirus on holiday leave? What would the procedure be? Can the employee refuse?

Bulgaria

There is no legal mechanism available to employers to force employees to use their holiday leave if they have visited a region/country exposed to the coronavirus.

By law, employers can send their employees on holiday leave without their consent: (i) if the enterprise or the department where the employee works ceases operations for more than five business days; (ii) if paid annual leave is used simultaneously by all employees, i.e. if the whole enterprise closes for some time and all employees use their holiday at one and the same time; and (iii) if the employee has not requested, after having been invited to do so in writing by the employer, to use his/her paid annual leave by the end of the calendar year to which the leave relates. The simultaneous use of paid annual leave by all employees can be envisaged in law or in the employer’s internal labour rules.

Czech Republic

The employer may order the employee when to take his/her annual leave. However, the specification of the leave must be made in writing at least 14 days before the leave, unless a shorter period was agreed on. Otherwise, both the employer and the employee would have to agree on the employee taking the annual leave in a shorter period.

Hungary

The employer may send the employee on holiday on the following conditions:

• The employer can grant the holiday after consulting the employee. Except for the first three months of the employment relationship, the employer is required to allocate seven working days a year, in up to two parts, at a time appropriate to the employee’s request. The employee must notify his/her intention regarding the holiday at least 15 days before the start. Unless otherwise agreed by the parties, holidays must be granted in a way that the employee is exempted for at least 14 consecutive days per calendar year from his/her working and availability obligations.
• The employee must be informed of the date of leave at least 15 days before the start of the leave. We note, however, that based on the special situation caused by Covid-19, the authorities will perhaps take an indulgent approach towards employers that do not comply with this special deadline rule.

Poland

The employer cannot unilaterally send an employee on holiday leave. The Polish Labour Inspectorate supports this view.

Romania

The local employment rules do not grant the employer the right to force the employee to take holiday leave when returning from regions exposed to the coronavirus.

However, the employer may give the employee the option (but not the obligation) to take either: (i) holiday from his/her annual leave, in which case the holiday is paid but will be deducted from the total number of annual leave days to which the employee is entitled; or (ii) unpaid holiday for personal reasons, if the employee is not already in quarantine, as per the legal obligation indicated above.

Russia

The employer can send an employee on unscheduled holiday leave only with the employee’s consent. The employer can send the employee on holiday leave without the employee’s consent only if the leave on particular dates was included in the holiday schedule approved by the employer at the end of the previous year.

Slovakia

The employer can order the employee to take his/her holiday leave. However, the employer is obliged to notify the employee of the specified period of leave at least 14 days in advance. This period may exceptionally be shortened with the consent of the employee. Without the employee’s agreement, the employer cannot order the employee to take leave from one day to the next.

Ukraine

No, this is not possible.

5. Can the employer refuse to allow into work employees who are citizens of china, italy or other countries exposed to the coronavirus? What would the procedure be? Would the employees be entitled to their salary?

Bulgaria

No. There is no special legal regime or interim measure that would justify the different treatment of such citizens.

Czech Republic

Generally, employers can order employees to stay at home, i.e. temporarily suspend the employee due to impediments to work on the part of the employer. However, prohibiting employees from working based on their citizenship or origin would most likely be considered discrimination. The choice of employees to be ordered not to work must be based on objective, substantive and impartial criteria. Therefore, only employees who have visited affected areas can be ordered to stay at home, irrespective of their citizenship. Employers should do so ideally in writing (an email will suffice). Employees who have been in contact with other people that may have been infected with the coronavirus may be encouraged to stay at home as well.

During such temporary suspension (impediments to work on the part of the employer), employees are entitled to salary compensation of 100% of their average earnings. During this period, employees are not obliged to perform work.

Hungary

Such practice would infringe the principle of equal treatment. There is no legal basis on which to refuse to allow Chinese or Italian employees to perform work. We see a minor risk however if the employer first starts to encourage home working among such employees.

Poland

The employer cannot refuse to allow such employees to work based solely on their citizenship, providing such employee does not travel to/from endemic areas. Otherwise, the employer would risk discrimination claims.

Romania

The employer may not refuse to allow to work employees who are citizens of China, Italy or other countries exposed to the coronavirus. The options available to employers are: i) quarantine, as imposed by the law and detailed above; or ii) temporarily close the office/plant and suspend the employment contracts for, e.g. force majeure or on the mutual agreement of the parties

Russia

Based on current legislation, the employer cannot refuse to allow such employees to work. If the employer decides to accept the risks and refuses to allow such employees to work or introduces idle time for them, we advise paying the employees 100% of their salaries in order to minimise the risk of disputes.

Slovakia

Prohibiting employees from work based only on their citizenship or origin would most likely be considered discrimination. The choice of employees to be ordered not to perform work must be based on objective reasons, and a causal nexus between the potential coronavirus threat and respective employee needs to be established. Therefore, only the employees who have visited affected areas or employees who have been in contact with other people that may have been affected by the coronavirus infection may be ordered to stay at home, irrespective of their citizenship.

Under Slovak law, such temporary suspension would be considered as an obstacle at work on the part of the employer, and thus the employer must pay the respective employees their average earnings.

Ukraine

No, the fact of the employee being a citizen of China, Italy or other countries exposed to the coronavirus cannot itself be the sole grounds for the employer not to admit them to work. General grounds for suspension/shutdown will apply to such categories of employees.

6. Can the employer ask its employees where they plan to spend their holidays?

Bulgaria

There is no legal prohibition on employers asking their employees where they plan to spend their holiday leave. However, employees are not obliged to provide such information to their employers.

Czech Republic

Employers can ask employees to inform them of their planned destination, however the disclosure of such information is at the employee’s sole discretion. Should the employer find out that an employee is planning to visit an affected country during his/her annual leave, the employer may cancel the employee’s annual leave; however, the employer would then be obliged to compensate the employee for the expenses that the employee incurred.

Hungary

The employer must inform its employees regularly concerning the actual situation regarding coronavirus. According to the current circumstances, the employer may warn its employees against travelling to countries or regions which are affected by coronavirus.

Poland

This is debatable. Given the unusual circumstances of the coronavirus threat, we believe that the employees can be asked where they plan to go on their holidays. The employer has an obligation to ensure health and a safe work environment, and employees must cooperate with the employer in this respect. We believe that privacy/GDPR rules do not contradict such approach.

Romania

The local employment rules do not grant the employer the right to force the employee to indicate their planned holiday destination.

Russia

The employer can ask the employees where they plan to spend their holidays, but the employees are not obliged to answer and the employer cannot force them to answer.

Slovakia

Employees are not obliged to disclose their holiday destination to the employer. Employers can ask employees to inform them of their planned destination, however the disclosure of such information is at the employee’s sole discretion. Should the employer find out that an employee is planning to visit an affected country during his/her holiday, the employer may cancel the employee’s holiday leave, however it must reimburse the employee’s costs.

Ukraine

The employer can ask, but the employees have no duty to inform the employer where they are going to spend their vacation or follow any instructions/recommendations from the employer in this respect.

7. Can the employer refuse to allow into work an employee who visited a region exposed to the Coronavirus?

Bulgaria

Please see the answer to question 2 above. Apart from cases where employers have the right to suspend employees from work by law, suspension from work for no legal reason is not explicitly allowed by law. In practice, we consider that as long as employees receive their salaries during the period of suspension from work and no data privacy rules at their workplace have been infringed as a result of the temporary suspension from work, the risk of having such suspension challenged by an employee is low.

Czech Republic

Yes, the employer can order an employee to stay at home and not to perform work. The employer can order an employee not to work, ideally in writing (an email is sufficient). Such situation would be regarded as an impediment to work on the part of the employer. During this period, employees are not obliged to perform work.

Hungary

The employer cannot refuse to allow such employees to perform work. The ability to work can be established by an occupational health service provider. If the company doctor has no opinion, the employer may offer home working or telework to the affected employees. We see a minor risk in employees refusing to work from home or teleworking.

Poland

Due to health and safety obligations, if the employer has a justified suspicion that the employee feels unwell and comes from an endemic region, the employee can be prevented from working. However, the Polish Labour Inspectorate has a different view.

Romania

The employer cannot refuse to allow to work employees who visited regions exposed to the coronavirus. The routes options to employers are: i) quarantine, as imposed by the law and detailed above; or ii) temporarily close the office/plant and suspend the employment contracts for, e.g. force majeure or by the mutual agreement of the parties.

Russia

Based on current legislation, the employer cannot refuse to allow such employees to work. We suppose that employers in Moscow can refuse to allow the employees to work based on the Decree. Due to high alert regime introduced in Moscow, such refusal may be considered as lawful even if it is not directly envisaged by labour legislation.

Slovakia

Yes, the employer can order an employee to stay at home and not to perform work. However, such situation would be considered as obstacles at work on the part of the employer for which the employee is entitled to salary compensation of his/her average earnings.

Ukraine

This is possible only via a partial shutdown of works, limited to such employee only, due to the threat to the other employees’ health. Such shutdown is documented by an order signed by the employer.

If you find the above useful and need more help in this area, please contact us at [email protected].