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Bucharest
October 21, 2020
EDITORIAL LEGAL OUTLOOK OP-ED OPINION POINTS OF VIEW

Solutions for employers for safely resuming work

By Dana GRUIA DUFAUT, Managing Partner, GRUIA DUFAUT Law Office

Romania is about to take the next step in managing the crisis caused by Covid-19 epidemic, meaning reopening the economic activity in an increasingly safe and healthy working environment for the employees, as starting with May 15 the state of emergency has been replaced by a state of alert.

In this new reality where social distancing at work is the key to public health, the employer is prompted to adopt new action strategies with respect to managing the relationship with both employees and clients/suppliers/service providers, in compliance with the Law no. 319/2006 on health and safety at work, the guidelines issued by the national public authorities but also by the European Commission.

According to the general principles of prevention on health and security at work, the plans to be implemented by each company must lead, in the order of priority, to: (1) avoiding the risk of exposure to the virus and contamination, (2) evaluating the risks impossible to avoid, (3) taking collective and individual protection measures.

This effort of reorganization of internal processes and reshaping of the action plans comes, obviously, with an immediate supplementary cost for the employer. Notwithstanding, working conditions unadjusted to the new reality are not an option, as on the long run, employers may incur even higher costs but also the risk of contravention sanctioning or constitute ground for material liability on their side and, in certain situations, or even lead to business being closed in some cases. Therefore, management choices in the next period shall shape the future of business.

In this process, there are five measures that we consider important to be taken by companies to ensure compliance with the legal provisions on health and safety at work.

 

  1. Observance of the general prevention principles 

The employer is bound, pursuant to the law, to ensure employees’ health and safety at work. Such obligations are to be addressed by using internally trained personnel or external specialists and  service providers, but without being exonerated of liability.

Moreover, the employers shall, pursuant to the law, draw up and update the evaluation of risks within the company and update the Prevention and Protection Plan (gathering the technical, sanitary, organizational and other measures) whenever the working environment evolves. The sanitary crisis caused by Covid-19 represents such circumstance.

When drawing up the strategy and the prevention and protection Plan, the employer must consider and observe the following general prevention principles: (a) avoiding the risks, (b) evaluation of unavoidable risks, (c) fighting the risks at source, (d) adjusting work to suit the person, especially with respect to planning work places and choice of equipment and work methods/processes, (e) prevention planning, (f) consultation, information and training of the employees for adequate use of the protective equipment and learning the new working procedures and (g) the proper enforcement thereof. The collaboration and support of the employees are must for succeeding.

 

  1. Re-evaluation of risks and layout of working space

The first step to be considered is the re-evaluation of the risks for the health and safety of the employees. Therefore, a two-way approach is to be considered: on the one hand the performance of an inventory of all the situations likely to expose the employees to the risk of contamination with SARS-COV-2, from access into and to exit of the premises, psychosocial risks included, and on the other hand, undertaking specific measures aimed to rule out / limit each risk identified.

Measures shall be surely various, as appropriate, and tailored to suit each activity, but they may include: telework / working from home, shift work with low number of personnel, flexible working schedule, distancing work places (by installing separating panels or desks layout to ensure a reasonable density of persons in the facilities as well as in the common premises, (general recommendation is that an employee should be provided at least 4 m2 included for moving, meaning at least one metre away from the other persons).

The flows generated by the movement/interaction with suppliers, customers or service providers from access to exit are to be considered when managing flows in the company.

 

  1. Consulting, informing and training of the employees 

It is advisable to involve the representatives of the employees in the process of identifying and adopting of the measures aimed to mitigate / prevent risks, and not only from a legal perspective. When taking any such measure, employees’ interests must be considered.

Employees’ representatives, especially the persons in charge with the safety and security at work, not only the occupational health physician, are best placed to help identify the potential contamination areas. Besides, the representatives of the employees play an essential part in disseminating the information amongst colleagues and achieve consensus.

Let’s not forget the fact that companies employing more than 50 persons have the obligation to set up a Committee for security and health at work. The Committee shall be informed about such measures, which are to be undertaken after being discussed therein.

Furthermore, all prospective consultation mechanisms established under the collective employment agreements or other agreements must be abided by.

The information process must include some steps: dissemination by electronic means (where possible) and / or visibly displaying the rules to be observed at the work place / hygiene measures, periodic information on the risks associated with the contamination with SARS-COV-2, organize training sessions targeting the use of certain protective means (such as the use of masks, safely handling correspondence, etc.) or new work processes.

There is no too much when it comes to protecting health and security of employees and public information campaigns do not suffice to prove that an employer has fulfilled the obligation to inform / train the employees.

 

  1. Response plan in case of contamination with SARS-COV-2

All processes aimed to protect health and safety at work need to be formalized. The obligation to take general and particular measures lies with the employer.

Special attention should be paid to protecting high risk employees and to those who display symptoms of the disease. The persons displaying some clinical symptoms associated to Covid-19 (cough, fever, breathing issues) must be encouraged to work from home and if the symptoms displayed at the work place are serious, then the employer shall establish an ad-hoc procedure so that the sick person is provided care by specialized medical care facilities, the space sanitized and other potential protection measures for the employees are taken.

The procedure shall also provide for informing the potential contacts of the sick person, should such person be confirmed as infected with SARS-Cov-2.The Public Health Directorate must also be informed, as an epidemiological inquiry is to be conducted.

 

  1. Supply of protective equipment

Pursuant to the legal provisions, the employer must provide to the employees adequate personal protective equipment.

In the specific case of the COVID-19 epidemic, such equipment should include at least the items communicated from the very beginning of the crisis, either as recommendation or as mandatory equipment (protection masks, gloves, face-shields, sanitizer, water, soap, etc.)

Besides the general protection measures, companies may also include temperature monitoring of persons upon entering the work premises. Such measures may be formalized under procedure  (mandatorily provided for in the Internal Regulation. Still, such procedure must comply with the provisions of the Labour Code, be proportionate with the objectives targeted and provide guarantees both with respect to prior information of the employees and lack of consequences, therefore the data gathered shall not be stored.

Temperature-checking of the employees upon arrival at the work place is currently subject to widely spread polemic at the level of the EU member States with respect to personal data processing, which are far from being settled.

This is a challenge that companies should not face alone and they are urged to seek help and assistance from specialists and consultants who can guide them through the process of auditing the activities and building the strategies to follow. It goes without saying that an important help for companies may also be their representation in the relationship with the Work Inspection or advice if unwanted accident at work occurs.

From our experience grounded on the numerous cases entrusted by our clients to the lawyers of GRUIA DUFAUT Law Office, I may say that we noticed that many times the obligations with respect to health and safety at work tend to be addressed as simple formalities, the economic operators limiting their actions to having training forms signed by the employees. But when an unwanted event occurs, many managers realize that the risks related thereto are huge for both the company and the individual.

This health crisis has forced us, in only two months, to rethink the whole working process in the organization, to find solutions for flexible working by extending telework or by setting up work in shifts, even under a rigid Labor Code as the Romanian one.

When we talk about health and security at the work place, this crisis proves to be a great opportunity as it raises awareness on the importance of human resources in a company, how important it is to focus on their health and safety, and thus how useful it is to integrate Health & Safety at work in the more general management and activity processes of a company.

 

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