Impact of COVID-19 on employment rights and obligations in Serbia
If you thought that in the text bellow we are going to analyze on which part of a employer-employee hierarchy chain is fair for dangerous virus to take the hardest economic punch, well you are not entirely wrong. But most importantly, it is of the great importance for all of us, whatever you are employer or employee, to act responsibly, accountably and conscientiously.
We have analyzed the provisions of the Employment Act and the Occupational Health and Safety Act, as relevant laws governing this area to provide guidance on how to manage a particular situation, to which end we have identified the major issues we believe could arise in practice and are of waste interest for everyone in this situation.
What workplace measures must employers implement to protect employees against COVID-19 infection?
Employers have a duty to ensure the occupational health and safety of employees in accordance with the Occupational Health and Safety Act.
First, employers are required to take prevention measures to protect the life and health of employees, as well as to provide the necessary funding for their implementation.
In the current climate this means that employers must, at their own expense, provide adequate sanitizing agents for maintaining personal and collective hygiene in the workplace, as well as workplace hygiene, in accordance with the instructions and recommendations of the competent state authorities, public health institutions as well as the WHO. These measures include providing employees with soap, warm water, hand and work surface sanitizers and cleaning and airing the workspace on a regular basis etc.
Furthermore, employers are required to provide employees with occupational health and safety training and to issue safe work instructions.
In the context of the protection against the COVID-19, employers must give employees complete and timely information about proposals and instructions from the competent state authorities, public health institutions and the WHO concerning anti-infection protection and workplace hygiene, and to train employees to use protective equipment. These measures include training employees in the use of protective tools, giving employees accurate information about how the virus is transmitted and posting instructions in a conspicuous place.
Finally, employers are required to ensure a healthy and safe working environment for all employees. It follows that employers have both the right and duty to remove employees from the workplace whom it reasonably believes could put the health of other employees at risk.
If an employer suspects that an employee is displaying COVID-19 symptoms, the employer must remove the employee from work, subject to compliance with certain conditions. Firstly, the employer must comply with the COVID-19 reporting instructions issued by the competent authorities, which pertain to placing the employee in isolation and contacting the competent public health institutions. Secondly, the employer must continue to respect the rights of the employee, bearing in mind that the employee’s health information is personal data protected by law.
Are employees entitled to refuse to come to work and stop working due to fear of infection?
Employees may not, of their own accord, refuse to come to work due to fear of infection. Employees must continue to work in line with the employer’s instructions.
If an employee stops coming to work and in turn working due to fear of infection, this could be considered a breach of the employee’s obligations and would entitle the employer to terminate the employment contract.
However, the employer is required to take the necessary safety and health measures described under point 1 above. Should the employer fail to do so, the employee could refuse to commence work until the employer takes all the necessary measures. Of course, whether refusal by a worker to come to work is justified would need to be assessed on a case-by-case basis.
Are employees entitled to work from home or remotely?
Employees may request that they be allowed work remotely or from home; however, employers are under no obligation to grant these requests.
The Employment Act stipulates that employees are required to respect the organization of work and to discharge their duties in line with employer instructions and at the place where the duties are to be discharged.
Where an employee is in fear of infection, he/she may ask the employer to allow him/her to work from home if the nature of the job so allows. However, any decision it is at the discretion of the employer and is under no obligation to grant it.
If an employee refuses to come to work without permission from the employer to work remotely, this could be considered a breach of the employee’s obligations and would entitle the employer to terminate the employment contract.
We note that the foregoing does not apply in the most extreme situations, i.e. declaration of a state of emergency throughout Serbia in which case measures imposed may restrict the human and minority rights enshrined in the Constitution, including curfew measures, etc.
Are employees entitled to special leave of absence due to a fear of infection?
Employees are not entitled to special leave of absence due to a fear of COVID-19 infection unless a competent state authority or the employer issues a decision/order or imposes other measures limiting the work process, such as a decision/order to use collective leave.
Employees are entitled to leave of absence under the general conditions prescribed by the Employment Act, which include the right to unpaid leave and the right to take annual leave.
First, with regard to unpaid leave, the Employment Act stipulates that an employer may give an employee unpaid leave. Therefore, the employer is entitled but not required to grant unpaid leave to an employee who fears COVID-19 infection, if the organization of work so allows. It is important to note that an employee’s employment rights and obligations are suspended during unpaid leave.
In addition, employees are entitled to take annual leave in line with the Employment Act. Employees concerned about contracting COVID-19 and who are entitled to annual leave may request annual leave during the period. However, it is the employer who ultimately decides on the use of annual leave by employees, subject to prior consultation with the employee concerned. Thus, employers are under no obligation to approve the period of annual leave sought by employees.
Are employers entitled to control where employees go on vacation?
Employers may not control employees’ choice of travel destination nor make it contingent on employees’ choice of travel destination.
Of course, employees must comply with the prohibitions, instructions and recommendations issued by the competent state authorities, public health institutions and the WHO when choosing a vacation destination, in order to reduce the risk of COVID-19 infection.
Are employees entitled to refuse to go on business trips due to a fear of infection?
Employees are only exceptionally entitled to refuse to go on business trips as directed by the employer.
The Employment Act makes no specific provision regarding an employee’s obligation to go on a business trip, whether in-country or abroad, considering that general compliance with the employer’s directions, including instructions to go on a business trip, is a core employee obligation under his/her employment. Should the employee, without good cause, refuse to comply with the employer’s directions instructing the employee to go on a business trip, this would constitute a breach of the employee’s obligations and would entitle the employer to terminate the employment contract.
However, we believe that employees are nevertheless entitled to refuse to go on business trips in justified circumstances.
In particular, employees are entitled to refuse to go on business trips to destinations that have been declared viral hotspots by the competent authority of Serbia or of other states, if the business trip involves travel abroad, and they are entitled to refuse to go on business trips to areas in which freedom of movement and assembly has been officially restricted due to the COVID-19 pandemic.
Furthermore, employees are entitled to refuse to go on business trips to other destinations as well – even in the absence those destinations being officially declared as viral hotspots or in the absence of restrictions imposed on the freedom of movement and assembly – if it is generally known, on the basis of publicly available information, that those destinations are viral hotspots due to significant transmission and infection rates among the local population.
Are employees required to notify employers if they contract COVID-19?
Employees must notify employers if they are temporarily unfit to work, regardless of the cause. This obligation also extends to employees temporarily unfit to work due to contracting COVID-19.
The Employment Act provides that employees must notify employers if they are temporarily unfit to work within three days as of become unfit to work and hand in a medical certificate to that effect which states the expected return-to-work date. Where an employee is seriously ill the medical certificate may be handed in to the employer by members of the employee’s household within the three-day deadline.
Failure to hand in a medical certificate on time is a breach of the employee’s obligations and entitles the employer to terminate the employment contract.
However, having in mind the exceptional circumstances surrounding COVID-19, it is our opinion that employers should demonstrate more flexibility in this regard and accept medical certificates even after the three-day deadline.
What are the rights of employees infected with COVID-19 who are on sick leave/in quarantine?
Employees infected with COVID-19 and are on sick leave/in quarantine are entitled to remuneration while temporarily unfit to work in accordance with the general conditions set down in the Employment Act.
The Employment Act provides that while temporarily unfit to work employees are entitled to up to 30 days remuneration at 65% of the average salary they earned in the 12 months preceding the month in which they became temporarily unfit to work due to a non-occupational illness, or 100% of salary where temporarily unfit to work due to an occupational disease.
We point out that a COVID-19 infection may be regarded as an occupational disease only if contracted by medical staff employed at health-care facilities on the front line of the battle against the virus. In short, medical staff temporarily unfit to work because they contracted COVID-19 in the course of their work shall be entitled to up to 30 days remuneration at 100% of the average salary they earned in the 12 months preceding the month in which they became temporarily unfit to work.
In all other cases, i.e. employees infected with COVID-19 that are not medical staff employed at health-care facilities cannot be regarded as having an occupational disease. Therefore, these employees are entitled to up to 30 days remuneration at 65% of the average salary they earned in the 12 months preceding the month in which they became temporarily unfit to work.
Are employers entitled to close the business while there is wide-spread risk of infection and what are employees’ rights in that regard?
It is at the employer’s discretion how it organizes the business processes and operations. Thus, the employer may choose to close the business while there is a wide-spread risk of infection from COVID-19, if it deems there is just cause and if the nature of the business allows for such a closure.
Where employers choose to close their businesses until the risk of contagion passes, employees are entitled to up to 45 days remuneration at 60% of the average salary they earned in the preceding 12 months. Where it has permission from the ministry in charge of employment, an employer may close the business for longer than 45 days, in which case employees are still entitled to the foregoing remuneration.
Can state authorities order the closure of a business if the employer fails to implement necessary safety measures and what are employees’ rights in that regard?
If an employer fails to implement measures necessary for ensuring a safe workplace and protecting the life and health of employees, the competent state authority or the employer’s competent body may order the closure of the business.
This would likely happen if an employer fails to comply with safety recommendations and instructions issued by the competent state authority, public health institutes and the WHO and if the employer fails to implement prevention and training measures for employees, as detailed in point 1 above.
For businesses subject to a closing order employees are entitled to remuneration in accordance with the employer’s by-laws and individual employment contracts.
Is information concerning COVID-19 positive employees confidential?
Information concerning an employee’s health, including any COVID-19 infection, is regarded as personal information within the meaning of the Data Protection Act, the processing of which is prohibited and is, thus, confidential.
An employee’s personal information as processed and maintained by the employer may not be made accessible to third parties, unless otherwise provided for by law, while the employee is entitled to request a copy of such information and that information not directly relevant for the employee’s job be deleted. Thus, after recovery from a COVID-19 infection, the employee is entitled to demand the information concerning the infection be deleted from the employer’s records.
In the event the employer breaches the confidentiality of the employee’s personal information, the employer could be held liable for damages suffered by the employee as a result of the breach.
For more information, please contact us via covid19@geciclaw.com
