Authors: Jan Koval, Štěpán Štarha, Lenka Ostró
On 4 April 2020, a government proposal amending the Labour Code came into force. At the same time, as of today, 6 April 2020, employers will be able to apply for benefits to support the maintenance of jobs. You can read about all the current changes in our overview below.
Until now, the employee could also work outside his/her workplace, at so-called home office, only if he/she had the employer’s consent, or if both agreed on it.
Under the new legislation, the employer may order the employee to work from home office in his/her household. Failure to comply with this employer’s order could establish the employee’s liability under the Labour Code.
At the same time, the employee’s right to work from home office in his/her household has also been introduced. Although the wording of the amendment does not explicitly state that the employee shall only notify the employer of home office, but the law does not exclude it. However, the employee’s right to work from home office is limited by the fact that the employee may claim working from home office only if there are no serious operational reasons on the part of the employer which do not allow performance of work from home office.
Thus, the employee will not be able to leave to work from home office if, for example, the employer necessarily needs him/her at the workplace. In the event of a conflict, it will be at the discretion of the employer to prove such operational reasons that have required the employee to be present. These reasons must be serious and related to the operation. The assessment of the severity of these reasons will depend on the specific case.
Even with these changes, it has still remained unchanged that the type of work that the employee performs must allow the performance of work from home office.
The need to respond flexibly to the rapid evolution of the situation by employers has also manifested itself in shortening some deadlines.
Employers may notify employees of working time schedule 2 days in advance, instead of the original 7 days. The employer may also agree with the employee on a shorter deadline. The employer will thus be better able to adapt to current needs.
We note that changing the work schedule does not mean shorter working time; it is only a schedule of employees’ shifts.
The employer will be able to notify the employee of ordering vacation at least 7 days in advance, instead of the original 14 days. As for the so-called remaining paid vacation (i.e. vacation not taken last year), it will be at least 2 days in advance. With the employee’s consent, the employer may also use shorter deadlines.
This measure directly reflects the situation immediately after the outbreak of the pandemic, which restricted employers in determining the taking of paid vacation.
A prohibition on serving a termination notice applies to an employee in quarantine or isolation as in the case of an employee incapable for work. Termination notice may also not be served on an employee who does not work due to important personal obstacles on his/her part, which is personal and full day care of a sick family member or full day care of a natural person specified in a special regulation.
When such an employee returns to work, the employer is obliged to assign him/her to the original work and workplace. If the assignment to the original work and the workplace is not possible, the employer is obliged to assign him/her to other work corresponding to the employment agreement.
The cessation or restriction of the employer’s activity based on a decision of the competent authority shall be expressly considered as an obstacle on the part of the employer.
An obstacle on the part of the employer is also the cessation or restriction of its activity resulting from the declaration of an extraordinary situation, a state of emergency, or an exceptional state.
Under the new legislation, the first group of employers are those whose activities are restricted or ceased directly by, for example, a measure of the Public Health Authority.
The second group are those employers who had to restrict or cease their activities due to a declaration of an extraordinary situation or a state of emergency.
However, already now we see possible interpretation problems regarding the second group of employers. Will this group also include all employers whose sales have dropped in the current situation and have therefore been forced to restrict or cease their activities?
We understand that the approved wording aims at the fact that the mere declaration of an extraordinary situation or a state of emergency itself will cause the employer to restrict or cease its activity (e.g. a prohibition of importing goods to the employer who processes). The drop in sales will only be the result of a restriction or cessation of the activity, not its cause. In our view, this measure will not apply to employers whose activities have not been restricted at all, or have been restricted but not due to the COVID-19 pandemic.
This provision does not apply to the possibility to reduce the wages of employees across the board, but to reduce wage compensation for employees who face obstacles to work on the part of the employer, i.e. for those employees who are at home and do not work.
With these obstacles on the part of the employer, the amount of compensation of the employee’s wage is reduced from the current 100% of average earnings to 80% of average earnings. However, wage compensation may not be lower than the minimum wage.
The employer may still pay wage compensation of at least 60% of average earnings if agreed with the employees’ representatives in advance.
These rules do not apply to employees of economic mobilization entities in which a work obligation has been imposed (e.g. health care providers).
These approved changes in the Labour Code may only be used by employers and employees for the duration of an extraordinary situation, a state of emergency, or an exceptional state, also up to two months after their cancellation. There is also a special regulation of provisions on ordering and notifying of home office, which are linked to the issued and effective measures of the Public Health Authority for the prevention and spread of communicable diseases, or measures taken in the case of threat to public health. The temporal limitation of the use of the changes only emphasizes the extent and importance of interventions in labour relations.
We consider the approved changes to the Labour Code only as ad hoc measures taken to free up employers’ hands and minimize adverse consequences during an extraordinary situation, a state of emergency, or an exceptional state.
It is not possible to assess the economic significance of the amendment in the current situation, and especially for the future. However, we can envisage some measures in the Labour Code also without their time limitation for the period of an extraordinary situation, a state of emergency, or an exceptional state, and shortly thereafter.
Employment promotion benefits are divided into two parts. The first group includes employers who, due to the extraordinary situation on the basis of the Measures of the Public Health Authority of the Slovak Republic, had to close their operations. Employers in the first group will be able to apply for a benefit from 6 April 2020, 12:00 PM. The maximum total benefit amount per applicant is EUR 800,000 for the entire period of the project’s implementation.
The second group includes employers who did not have to close their operations on the basis of the Measures of the Public Health Authority of the Slovak Republic, but their sales have dropped by at least 20% or more. Employers in this second group should be able to apply for a benefit 2 days later, starting from 8 April 2020.
In both groups, the employer will be entitled to a benefit only for those employees to whom it cannot assign work due to an obstacle on the part of the employer (Section 142 of the Labour Code).
As regards the benefit amount, employers in the first group will be entitled to a benefit per employee in the amount of wage compensation paid for the time of obstacles to work, up to a maximum of 80% of average earnings, with a maximum of EUR 1,100 per employee.
Employers in the second group will be entitled to a benefit per employee in the amount of wage compensation paid for the period of obstacles to work, up to a maximum of 80% of average earnings, while the maximum amount being determined by the drop in sales in each month. Details of the conditions that employers will have to fulfil in order to be paid benefits, as well as the individual facts that will have to be demonstrated, are published on the website of the Ministry of Labour, Social Affairs and Family, as well as on the website www.pomahameludom.sk and www.neprepustaj.sk, through which applications can be submitted and where all the instructions on how to apply are given.
