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Gruia Dufaut Law Office: Exceptional measures in the context of the COVID-19 pandemic shaped to protect the enterprises and the employees

Labor Law: New regulations within the emergency framework

In the context of the COVID-19 pandemic, the Government enacted a series of exceptional measures shaped to protect the enterprises and the employees by both granting parents paid leave for school children care during the emergency state and by amending of certain normative acts impacting on labor law.

 

PAID LEAVE FOR SCHOOL CHILDREN CARE

 

The Emergency Ordinance of the Government no 30/2020 amending the Law no. 19/2020 as well as the decision of the Government no. 217/2020 for children care were published in the Official Gazette no 230 et 231 as of March 21, 2020.

Here below there is a brief overview on the clarifications brought:

The law granting day off to one of the parents to supervise their children (up to 12 years or up to 18 for disabled children) in case of temporary closing of educational establishments stipulates the possibility to benefit from paid leave apply for the 30-day period of the emergency state, excepting working days of the school holidays ;

In order to benefit from the paid leave, the employee must enclose to their request a declaration on sole responsibility of the other parent declaring that he/she did not benefit from such paid leave pursuant to the Law no. 19/2020 and that he/she is not on vacation, unpaid leave or unemployment;

The concerned employee shall benefit from an indemnity amounting to 75% of the salary corresponding to a working day, but not more than 75% of the gross average wage used to substantiate the budget of the state social insurance, namely LEI 5.429, in gross (regardless of the employee’s having a higher salary).

Such indemnity shall be paid up by the employer who is entitled to a reimbursement thereof – the net amount of the indemnity paid up – conditional upon submission of a file to the National Agency for Occupation of the Workforce (ANOFM). The employer is bound to pay the taxes and the social charges pertaining thereto.

Such amounts paid up as indemnity shall be reimbursed within 60 calendar days since registration of the reimbursement file.

 

Such file to be submitted by the employer shall contain:

A request providing for the identification data of the company, the email address, the bank account number, the total amount requested and the number of employees benefitting from paid leave for child care ;

The list of the employees beneficiaries of the indemnities granted

A copy of the payroll;

A declaration under the sole responsibility signed by a legal representative of the company attesting that the legal conditions with respect to the persons included in the list hereinabove referred to are met ;

A certificate attesting the payment of the contributions are the taxes corresponding to the month for which the indemnity was paid for;

The reimbursement request may be filed by electronic means or by any communication means within 30 days since the date of payment of the indemnities and of the tax pertaining thereto.

The reception of the request and the reference number attached thereto must be delivered by the Agency for Occupation of the Workforce within the 24 hours since submission thereof.

 

TECHNICAL UNEMPLOYMENT

 

According to the Emergency Ordonnance of the Government no. 30/2020, the State takes over, under certain condition, the payment of the indemnities paid up by the employers to the employees whose employment contracts were suspended as a result of the COVID-19 pandemic and the declaration of the emergency state, under art. 52 (1) letter c) of the Labour Code.

 

Such incentive can be granted to the following categories of employers:

 

(i) The employers having completely or partially interrupted their activities during the state of emergency based on the decisions issued by the competent public authorities and possess the state of emergency certificate issued by the Ministry of Economy, Energy and Business Environment in Romania. The procedure regarding the issuance of such certificates remain unknown for the time being and are to be communicated the following days;

OR

(ii) The employees whose activity is reduced by at least 25% further to the effects of the COVID-19 epidemic and who are no longer able to financially sustain the payment of the salaries of the employees. In this case, employers shall benefit from the provisions of GEO 30/2020 for maximum 75% of the employees whose employment contracts are active on 21 March, the time of entry into force of the GEO 30/2020.

Hence, the employer may be granted such payment on grounds of a declaration under sole responsibility certifying a drop at least 25% of the revenues as compared to the average of the two previous months (January and February 2020) but also on their becoming financially incapable to pay all the employees.

According to the Ordinance, the indemnity shall amount to 75% of the base gross salary without exceeding 75% of the average gross salary provided for by the Law no. 6/2020 (namely 75% of the gross average wage – LEI 5.429).

The indemnity for technical unemployment borne for the unemployment insurance budget is subject to tax (10%) and social contributions under the provisions of the Fiscal Code. Therefore the employers shall calculate, withhold and pay from this indemnity the income tax, the social contribution and the health insurance contribution This indemnity is not subject to the work insurance contribution: The withholding and payment of such amounts shall be fall to the employer out of the indemnities cashed up from the budget for unemployment insurances (paid up by the State). The payment and submission of tax and contributions returns term is the 25th of the month following the month when the payment from the budget for unemployment insurances is made.

For the record, during the emergency state the employer is entitled to unilaterally suspend / interrupt the employment contracts for economic reasons by invoking force majeure. Nevertheless, COVID-19 it itself does not suffice to account for a force majeure case for each employer. Each case requires specific analysis.

GRUIA DUFAUT LAW OFFICE

Attorneys at law (Paris & Bucharest)

www.gruiadufaut.com

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