In the context of the economic crisis caused by the Covid-19 pandemic, the Government has recently adopted new measures intended to protect employees and employers and which aim, on the one hand, to stimulate employment, and on the other hand, to support companies whose activity has been hampered by the declaration of the state of emergency / alert.
These measures for the benefit of employees and employers are governed by Government Emergency Ordinance No. 132/2020, published in Official Gazette No. 720 of August 10, 2020, thus introducing to the Romanian law the famous German model of Kurzarbeit (“reduced-time work ”).
75% ALLOWANCE FOR EMPLOYEES, IN CASE OF REDUCTION OF REGULAR WORKING TIME
The employer can unilaterally decide to reduce by a maximum of 50% the number of working hours (provided for in the individual employment contract) for employees, after priory informing and consulting, as appropriate, the union, employee representatives or the employees themselves.
The reduction of the number of working hours is allowed for at least 5 consecutive working days and the employer is required to priory set the working time for the entire month. This reduction in the working hours can also apply to shift work (i.e. work in alternating or rotating shifts) or unequal work (i.e. for 8-hour working hours / unevenly distributed per day; 24/48 hours, for example).
Cumulative conditions to be fulfilled by the employer in order to be allowed to reduce working hours
• the temporary reduction in the activity of the company, as a result of the declaration of the state of emergency / alert;
• the measure targets at least 10% of the total number of employees of the company;
• the reduction in activity is justified by a decrease of at least 10% of the turnover for the month preceding the taking of this measure or, at most, the turnover of the month prior to the month preceding the measure of reduction in the work program, compared to the same month of the previous year. In the case of NGOs or Self employed persons, sole proprietorships and family businesses, the decrease is linked to income earned.
Allowance: calculation and payment
The employees targeted by this measure receive from the State an allowance representing 75% of the difference between the gross salary provided for in the employment contract and the basic gross salary corresponding to the hours actually worked. This allowance adds to the salary income, calculated for the actual working time.
The allowance is paid to the employee by the employer on behalf of the State, on the date of payment of the salary for the concerned month and is subject to income tax and payment of mandatory charges.
Initially, the sum is paid by the employer who can be reimbursed by the State, upon request, once it has declared and paid the related social contributions.
The reimbursement procedure and the period of application of this measure of financial support granted by the State to companies have not yet been published by the Government.
Restrictions on employers
During the unilateral reduction of working time, the employer is not allowed to:
• conclude new employment contracts for activities that are identical or similar to those provided by employees whose working time has been reduced or subcontract activities carried out by employees whose working time has been reduced; this ban also applies to branches, subsidiaries or other secondary offices of the company.
• reduce the working hours of the employees concerned by art. 52 paragraph (3) of the Labor Code;
• grant bonuses and / or other supplements adding to the base salary to those holding positions in the management structure;
• allow the performance of additional work / teleworking by the employees affected by this measure;
• initiate collective layoffs.
Failure to observe the above restrictions is punishable by a fine of RON 20,000 for each employee identified in this situation, without thus the cumulative value of the fine payable exceeding RON 200,000.
The provisions of the GEO No. 132/2020 also benefit apprentices, provided that the employer gives them access to theoretical and practical training to acquire the skills provided for by the relevant occupational standard, respectively the vocational training standard.
41.5% ALLOWANCE FOR CERTAIN CATEGORIES OF PROFESSIONALS
The professionals defined by Law no. 287/2009 of the Civil Code (i.e. liberal professions), benefit, upon request, on the basis of a sworn statement certifying the temporary reduction in their activity and the reduction in income, from a monthly allowance of 41.5% of the gross average salary gain set to RON 5,243 in 2020. This indemnity can also benefit people who have concluded labor agreements (employees of manufacturing cooperatives, agricultural cooperatives, etc. who have signed such labor agreements with cooperatives under Law 1/2005 on cooperation).
In the case of professionals, the allowance is paid directly by the State, through the National Agency for Social Payments and Control (the departmental directorates and that of the Municipality of Bucharest). The allowance is subject to income tax and social security contributions, the persons concerned having the obligation to declare these tax obligations under the single tax return. Persons who have concluded individual employment agreements for which the cooperative withholds, declares and pays social contributions and income tax related to this allowance are exempted from this obligation.
FINANCIAL SUPPORT FOR DAILY WORKERS
The employer of a daily worker (the daily worker is a natural person who performs unqualified work and occasionally on behalf of a natural or legal person) can grant to the latter for a period of 3 months, until December 31, 2020 at the latest, an allowance amounting to 35% of the remuneration due for a working day.
The condition for paying such allowance to the employer (called by the law “beneficiary of the work”) can be fully reimbursed by the State, subsequently, is that the daily worker collaborates with an entity operating in the fields regulated by art. 13 of Law no. 52/2011 (among others: commerce, agriculture, restaurants, sports clubs, etc.) and that the activity of this entity has been impaired by either cessation or fall in activity due to the Covid-19 pandemic.
The State is to reimburse such allowance within 10 days since the date of filing of the request by the beneficiary of the work, based on a procedure which must be approved by the Government in the following period
OTHER SUPPORT MEASURES FOR EMPLOYERS
• Until December 31, 2020, but not for more than 3 months, employers who employ people under an individual employment contract for a fixed 3-month period at most, can benefit from the reimbursement of part of the salary of these employees up to 41.5% of the salary pertaining to the days worked by employees on fixed-term employment agreements, without thus exceeding 41.5% of the gross average salary gain for 2020 which is RON 5,243. The reimbursement of the 41.5% allowance, paid by the employer on behalf of the State, is made, upon request, on basis of a sworn statement, by the National Agency for Occupation of the Labor Force. The State is to reimburse the allowance paid by the employer within 10 days since the date of filing the request and the communication of the list of persons concerned.
• Employers can receive from the State a one-off financial assistance of RON 2,500 for each teleworker, in order to be able to purchase equipment and technological services necessary for the teleworking activity. These amounts are granted to employers for each employee who has been working under the teleworking regime during the state of emergency for at least 15 working days. The sums are paid by the State in the order in which applications are submitted by the companies, until December 31, 2020, within the limit of the funds provided for this matter. After obtaining the financial assistance, the employer must send, within the 30 days following the date of receipt of the money, the underlying documents relating to the purchase of the goods concerned, otherwise incurring the risk to be held to full reimbursement the amounts received.
GRUIA DUFAUT LAW OFFICE
Attorneys at law (Paris & Bucharest)