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Coronavirus - Employment law update - Romania

  • Romania
  • Coronavirus - Country overview
  • Employment law

19-03-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by the Romanian employers in the context of the CoVID-19 outbreak.

General Principles

Romanian employers should:

  • monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”), the Ministry of Health (MH guidance), the Ministry of Foreign Affairs (MAE guidance), the National Institute for Public Health (NIPH guidance) and the Government (Government guidance)
  • assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
  • inform their employees and, where relevant, recognised unions about their proposed measures
  • review whether implementing flexible working is feasible and, if practicable, implement this type of model. In this context, employers should also analyse whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • review relevant insurance policies and guidance issued by their insurers
  • update contact details for staff and management
  • devise arrangements for dealing with staff who have to travel abroad, who may be at particular risk of contracting CoVID-19 or who report symptoms and may have CoVID-19

1. Employer’s duty of care – what does the law in Romania say?

Romanian employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Regulations require employers “to carry out and be in possession of a risk assessment for occupational safety and health,” for the employees and for anyone else who may be affected by the employer’s business. This duty is a continuing one, and assessments must be recorded. The Regulations contain specific provisions in relation to young employees and pregnant women.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the Government, the Ministry of Health, the Foreign Affairs Ministry, the National Institute for Public Health or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Aiming to limit the spread of the virus, the Romanian authorities have recently implemented a set of supplementary measures:

  • employers must ensure the availability of materials for personal hygiene (e.g. soap, paper towels, hand driers), frequently disinfect door handles, as well as other exposed areas (conference tables, offices etc.)
  • the authorities recommend employers to report confirmed CoVID-19 cases to the Direction for Public Health, so that the latter may trigger epidemiologic investigations
  • employers must inform employees regarding quarantine leave
  • employers must assess if remote working is feasible and implement this type of model if compatible with the business activity
  • public gatherings are permitted in restricted conditions - gatherings of more than 100 participants are now prohibited

Guidance recently issued by the Ministry of Labor includes a recommendation for employer to:

  • consider whether or not flexible working programs may be adequate (e.g. flexible working time, work from home, telework)
  • carry out a health and safety assessment, targeted especially on identifying whether vulnerabilities specific to CoVID-19 may be identified
  • promote conference calls and email correspondence to reduce personal contacts
  • reduce business travel, unless imperatively necessary
  • implement a business continuity plan (e.g. identify places of work for which continuity must be ensured, identify workers who have the required competences)

Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing, etc).

As for the screening of employees (and visitors) i.e. asking employees/visitors whether they have travelled to a high-risk area, this should be approached with caution and taking into account data protection considerations.

As of 18 March 2020, the position of the Romanian Data Protection Authority on the matter of processing health related data is that there needs to be legitimate grounds for such data to be processed (e.g. the employer’s obligation to safeguard the health and safety of their employees, complying with public health measures etc.). However, data controllers remain bound by the obligation to ensure an adequate level of security of the processed data, to inform the data subject etc.

If an employer fails to implement appropriate measures then it will potentially leave itself exposed to being liable for failing to ensure health and safety at the workplace.

Employers must adhere to quarantine and self-quarantine regulations for employees who travelled to the high-risk destinations identified by the Romanian authorities. Employers must not , under any circumstances, allow employees subject to institutionalised/self-imposed quarantine to access their premises.

Employers should also consider implementing protocols to deal with employees who propose going on holiday to destinations identified as high risk by the Romanian authorities (noting that there is no legal framework to allow the employer to refuse to grant annual leave on the basis of the holiday destination) or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specialising in employee relations, insurance, travel and events, communications and occupational health to work together on developing appropriate protocols.

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of unlawful termination of employment or discrimination claims.

In summary, employers should consider, and where appropriate implement, appropriate measures, as well as explain those measures to their employees and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

As part of a set of measures to limit the spread of CoVID-19 in Romania, the Romanian Government has issued a travel ban (whether by air, rail or road) to and from various regions, such as Italy, Spain etc.. Business trips to such areas should, therefore, be cancelled/postponed. Additional measures and restrictions are expected in the following days.

Employees returning from certain affected areas (find a list here) shall be subject to mandatory quarantine (either institutionalized or self-imposed).

In addition to the above, the Romanian Ministry of Labor has issued guidance that employers should consider limiting business travel, except where such travel is imperative.

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative, the latest government and international guidance, guidance from their occupational health advisor, and available measures to mitigate risk.

3. Flexible working - can an employer require staff to work flexibly?

The Romanian authorities are strongly encouraging a cooperative approach with employees on this subject. Suggested options to explore include:

  • implementing a flexible working program, with the employee’s consent/at the employee’s request
  • changing the employee’s place of work to their home – in principle, this option also requires the employee’s consent
  • implementing telework systems – this also requires the employees’ consent and specific formalities

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties.

In principle and unless the contractual framework already allows a more flexible approach, employers are not able to impose working from home.

If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with each employee, or with a recognised union or the representatives of the employees if collective bargaining is in place.

If employees refuse to agree the changes then, depending on the circumstances, the employer should consider other alternatives. Employees cannot be sanctioned for refusing to work under a flexible work arrangement, like telework.

Alternatively, if the reason for flexibility is personal to the employee (i.e. the employee is at risk of having been infected), or if the measure is necessary (and the employer is able to document such necessity) to protect employees (i.e. on site work is no longer safe) then the employer would have good grounds for requiring the employee to work from home, provided their removal from the workplace lasts no longer than is necessary and they are provided with support. Forced removal from the workplace can occur only in circumstances of mandatory quarantine or self-quarantine.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19.

The labour authorities have to date provided only general guidance on how to handle the situation of the outbreak, the overall recommendations being that employers and employees work together to identify whether remote work is an available and adequate option. Where work can be undertaken from home, it may be possible to agree home working for a short period.

In other cases, such as site-based work or where staff are unable to work due to caring for dependants, and where the flexibility suggestions of the Labour Ministry are not feasible, it may be possible to agree that time away is taken as holiday or unpaid leave.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted. As per the current legislation (19 March 2020), employees may be entitled to paid time off to take care of their child in a scenario in which the schools are closed – specific conditions apply.

However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to a statutory indemnity for quarantine and benefit from a period of special medical leave, called “medical leave for quarantine”. The indemnity is paid by the state and is equal to 75% of a base level, calculated based on the average monthly salary over the past 6 months, subject to a cap of 12 gross minimum wages. During the medical leave, the contract is suspended and the employee is not required to work.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, should be determined in accordance with their employment contract, the employer’s usual policy and eligibility for the paid days off under the recently enacted legislation, ensuring that all requests are treated in a reasonable and consistent manner,

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Processing health-related data should be approached carefully, in light of the fact that, under GDPR, health data is qualified as sensitive data, which may be processed with the consent of the data subject and on the basis of an express legal requirement.

The processing of this type of data information (for instance, scope of information and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

As of 18 March 2020, the position of the Romanian Data Protection Authority on the matter of processing health related data is that there are legitimate grounds on which such data may be processed (e.g. the employer’s obligation to safeguard the health and safety of the employees, to comply with public health measures etc,). However, data controllers remain bound by the obligation to ensure an adequate level of security of the processed data, to inform the data subject etc.

Employers are prohibited from carrying out medical checks on employees – only a medical professional may assess the health of an employee.

Further, CoVID-19 tests may only be carried out for suspected cases of CoVID-19 infection.

Employers can request employees who have been placed under mandated/self-quarantine to provide the medical certificate provided by the competent health institutions and which states that the employee is healthy and presents no CoVID-19 danger for the population.

When implementing the protection and prevention plan, employers must be careful to avoid unlawful discrimination, direct or indirect, which might arise in the context of the outbreak.

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shutdown period?

No, employers cannot require employees to take annual leave during a shutdown period, although other alternatives may be considered appropriate such as a voluntary cessation of activity (in which case the employees would be entitled to an indemnity of at least 75% of their base salary) or agreeing overtime in lieu of paid time off. If employees are quarantined or in the case of a state mandated quarantine, labor agreements will be suspended and employees would be entitled to the quarantine leave pay.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • inform the employees of the steps they should take to receive appropriate medical attention if they are ill or at particular risk of infection
  • train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • consider alternatives to travel, such as using videoconferencing or webinars
  • identify and track employees who are abroad and consider appropriate measures to support them
  • identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
  • consider any measures necessary to sustain widespread home working
  • review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
  • consider how temporary shutdowns of premises might be managed
  • review their insurance coverage
  • consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently

9. Where can guidance from the Romanian government and international bodies be found and monitored?

Click here for the World Health Organization’s information on the CoVID-19.

Other useful links for employers are as follows:

10. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

11. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

In case of a risk of exposure to the CoVID19 virus, employers are recommended by the authorities to immediately inform the competent Territorial Public Health.

Reporting obligations apply to medical practitioners and laboratories undertaking CoVID-19 tests, which have to inform the competent health authorities about the suspicious/confirmed cases.

Moreover, employers may find it helpful to call the toll-free phone number 0800800358, made available by the Health Ministry, in order to request information on how the virus manifests itself, how to avoid infection and other details related to preventive behaviour. Kindly note that this number is not an emergency number and where there are suspicions about employees who may have contracted the virus, the emergency number 112 should be used.

Please see all our latest briefings on CoVID-19 on our Health Matters: Coronavirus update Hub.