by Catalina Nichita - Attorney at Law SCA Grecu si Asociatii, www.greculawyers.ro.
In view of the current situation, the critical effects of spreading COVID 19 virus, require the implementation of several measures, in order to minimize the economic impact. At this point, the biggest economic blow is felt by small companies and subsequently the employees.
Regarding the critical situation, the companies received a series of recommendations from the Ministry of Labor and Social Protection in order to make labor relations more flexible:
1. Establishment of individualized work programs, with the agreement or at the request of the employee concerned, in accordance with the provisions of art. 118 of Law no. 53/2003-Labor Code, respecting the maximum legal duration of working time.
2. Temporary modification of the workplace at the employee's home, under the conditions provided by art. 108-110 of the Labor Code, unilaterally, in accordance with the provisions of art. 48 of the same normative act, or through the agreement of the parties.
3. Conducting the activity remotely, by concluding an additional act to the individual employment contract, under the conditions provided by Law no. 81/2018 regarding the regulation of remote activity, when fulfilling the specific duties of the position or occupation of the employee implies the use of information and communication technology.
In addition, starting with 17.03.2020 came into force the Law 19/2020 regarding the leave of one of the parents for the supervision of the children, in the situation of temporary closure of the educational units where they are enrolled. The normative act takes into account the situation decreed in the context of coronavirus.
In order to qualify for the leave, the parents must cumulatively fulfill the following conditions:
a) have children up to 12 years or have children with disabilities up to 18 years (enrolled in an educational unit);
b) the workplace does not allow work from home or remote.
Parents who are in the above situation have the right to paid leave during the entire period of suspension of the educational units.
The law stipulates that the allowance for each day off is 75% of the salary of a working day (we refer to the salary of the parent requesting the leave), but no more than the correspondent per day of 75% of the average gross wage in the country (in 2020 the average gross wage gain is 5,429 lei).
It should be mentioned that there are certain areas in which the parent's request for leave is conditioned by the employer's acceptance. These exceptions apply to employees in national energy system units, operating units in the nuclear sectors, continuous fire units, health and social care units, telecommunications, public radio and television, rail transport, units. which ensures the public transport and sanitation of the localities, as well as the supply of the population with gas, electricity, heat, and water.
For the other areas that do not fit in the previous list, the application is not subject to the agreement of the employer.
Moreover, the spread of the COVID-19 virus can lead to quarantine, respectively the isolation at home of the employees. Below we present, briefly, the implications of these measures.
First of all, if the competent authorities impose quarantine, the employees will be on a special leave, regulated by OUG no. 158/2005 as well as by the Order of the Minister of Health no. 15/1311/2018. The leave and the allowance for the quarantine are granted to the insured persons who are prohibited from continuing the activity due to a contagious disease, during the period established by the certificate issued by the public health department.
According to the normative act, during this period the employees have the right to a medical leave allowance of 75% from a salary base that represents the average of the gross monthly income.
Of course, quarantine is not a matter set by a private entity. A serious health problem (such as the case of the spread of the Covid-19 virus) causes the competent authorities to make the decision to prohibit the continuation of activities for a certain period of time. Therefore, the employer does not decide whether it is appropriate for his employees to enter a quarantine leave.
Also, some additional aspects are worth mentioning:
- the duration of the quarantine leave does not decrease from the number of days of medical leave;
- the medical certificate can be issued at a later date, according to the norms established by the Ministry of Health, for the current or previous month;
- the quarantine allowance is fully supported from the budget of the unique national health insurance fund;
- the doctor mentions in the medical certificate the quarantine period established by the competent authorities.
Also, persons in self-isolation will receive medical leave in the same conditions as those in quarantine. Therefore, those who are forced to stay at home for a certain period will receive an allowance of 75% from a salary base that represents the average monthly gross income for the last six months. Also, the number of leave days for home isolation does not subtract from the medical leave.
Self-isolation is established both for those who have traveled to areas affected by coronavirus spread and have made direct contact with people with symptoms, as well as for members of their families. It is important to note that all those who are in self-isolation are obliged not to leave the declared home.
Furthermore, the Minister of Finance announced the scenario in which almost one million Romanians employees will be sent into technical unemployment due to the crisis caused by the coronavirus pandemic.
Among other things, the technical unemployment implies that the contracts of the employees are suspended at the initiative of the employer, who is still obliged to pay a monthly allowance. Contracts are only suspended, as the labor relations do not cease.
The Labor Code provides that employees must receive a monthly allowance of at least 75% of the basic salary. Employers can choose to pay more than 75%, but not less. During the period of technical unemployment, the employees are at the employer's disposal. When it is decided to resume work, the employees return to work and receive the usual salaries again. A person with a suspended contract cannot apply for unemployment assistance.
Finally, the President's Decree no. 195/2020 regarding the establishment of the state of emergency on the territory of Romania, provides the following first-aid measures with direct applicability regarding the employees:
- Settlement of medical leave granted to persons quarantined for COVID-19 will be carried out with priority by providing additional amounts in the UNFPA budget at the required level;
- During the state of emergency, the inspections of employers by the territorial labor inspectorates are suspended, except for the controls ordered by the Minister of Labor and Social Protection.
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