By Cristina Tudoran, Senior Associate, Filip & Company
The new coronavirus that appeared in December 2019 in Wuhan, China, has rapidly spread all over the world during the last couple of months and, over the last weeks, it had a strong impact on the European countries, Romania included.
In this context, companies whose employees frequently travel abroad started to have concerns in this respect.
At local level, the labour and work health and safety legislation includes a series of rules that employers can apply to prevent the spread of epidemics (therefore also applicable to COVID-19) and to limit their negative effects within the organisation. In addition to it, on Wednesday, 26 February 2020, the Ministry of Health issued Order no. 313/26.02.2020 in relation to the enforcement of quarantine for persons with a risk of being infected with COVID-19 and for the establishment of measures to prevent and limit the effects of the epidemics.
The enforcement of quarantine and self-isolation
Quarantine is established over a period of 14 days for persons who, despite not showing any symptoms, have returned from areas with extended community transmission of the new coronavirus (these areas are updated in real time on the website of the Ministry of Heath).
Persons returning from areas affected by COVID-19, other than the areas with extended community transmission, must self-isolate themselves at home for 14 days, time during which they will be monitored by the public health directorates and by their family doctor. The measure also applies to their family members. The measure is also mandatory for people who had direct contact with persons showing symptoms and who travelled in areas with extended community transmission, who had direct contact with persons with confirmed coronavirus infection as well as to the family members of the persons that fall under any of these situations.
Suspension of the labour agreements
According the Labour Code, the enforcement of quarantine represents the legal grounds for the suspension by the operation of law of the individual labour agreement, which entails that the employees no longer work and no longer receive their salary rights. They will however benefit from the indemnity described below.
Although self-isolation is not expressly regulated as grounds for suspension, the Ministry of Health informs that, upon exiting self-isolation, employees benefit from medical leave that will be prescribed by the family doctor based on the certificate issued by the Public Health Directorate, a certificate from the employer not being required any longer. Therefore, this cause will also trigger the suspension of the labour agreement.
Medical leave and applicable indemnity
Pursuant to the law, persons affected by quarantine benefit from quarantine leave and indemnity. These are granted to employees who are forbidden to continue their activity by reason of a contagious disease, throughout the period set forth in the certificate released by the public health directorate. The quarantine related medical leave certificates can be released for a period longer than 10 days (i.e. the applicable limit for leaves awarded for temporary labour incapacity). Moreover, the duration of the medical leave for quarantine does not cumulate with the duration of the medical leaves granted to an employee for other impairment.
In what concerns the quarantine indemnity, its monthly gross amount represents 75% of the calculation basis set forth by the law and is fully paid from the budget of the Unitary National Social Insurance and Health Fund.
Atypical situations: What happens however with those employees who do not seem to fall into the situations requiring self-isolation or quarantine?
Given that the international alert level on the new coronavirus has recently been raised to its highest by the World Health Organization, the global situation creates the premises for a legitimate justification allowing employers to immediately take any measures required to protect the occupational health and safety of their employees.
Depending on the specificities of each organization and the interests of their employees, employers may resort to one of the following measures stipulated by the labour law:
- employees may work from home (e.g. remote work, if there is an addendum concluded in this respect);
- employees may benefit from the advance compensation of overtime, by receiving paid time off (the overtime that will be done during the following 12 months will be compensated thereby);
- employees may be temporarily laid-off, based on technical and economic reasons that justify the temporary decrease/interruption of activity, subject to the payment of an indemnity of 75% of their base salary;
- the parties may agree that employees should take unpaid leave during this period;
- the employer could establish, after consulting the employees, that the remaining annual leave be taken during the 14-day period.
Another measure of interest may concern the scheduling of frequent medical checks in the following period, in collaboration with the occupational medicine service provider and upon consulting the employees’ representatives. For example, the special legislation stipulates that periodic examinations are intended, among other things, to even detect diseases that pose a risk to the life and health of other workers at the same work place.
Furthermore, the employees’ level of responsibility should also be proportionate to the seriousness of this threat, especially since the failure to comply with the measures for the prevention or control of infectious diseases can constitute the crime of hindering the fight against diseases, which is punishable by imprisonment, even when it was not intentionally committed (the cases of persons under criminal investigation for failing to self-isolate are already well-known).