Considering spreading of the epidemic of virus COVID-19, drastic measures were imposed by Authorities, declared state of emergency, other measures introduced by the Government of Serbia and consequences that are reflected on the work and business of the Business Entities as well, we point outpossible ways of treating the employer in relation to employees, all about legal challenges caused by Coronavirus outbreak.
Undertaking all necessary health measures independently of the method of organisation of employees is a must.
Absence with compensation of salary (paid leave)
According to reduced workload in a huge amount of companies and activities a matter of great importance is, on the one hand the adjustment employment status of employees and on the other hand, continuing the performance of tasks.
The Labor Law stipulates in the provisions defining the wage compensation:
“Any employee shall be entitled to the wage compensation in the amount of 60% of the average salary in the twelve preceding months, where it cannot be lower than the minimum salary set pursuant to this Law during discontinuation of work and/or decreased scope of work that occurred without any fault of the employee, for 45 days in a calendar year at most.
Exceptionally, in case of discontinuation of work, and/or decreased scope of work requiring longer absence, the employer may, with prior consent of the minister, refer the employee to absence leave exceeding 45 working days, with the wage compensation referred to in paragraph 1 of this Article.” Labour Law (Official Gazette of the Republic of Serbia no. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17, 113/17, 95/18) Art. 116, para. 1 and 2.
In addition, pursuant to provisions of this law:
“Any employee shall be entitled to the compensation of salary in the amount set in the general document and labor contract during discontinuation of work that resulted from the order of the competent state authority or competent body of the employer because the lack of proper security measures to protect life and health at work that are prerequisites for further work without risk for life and health of employees and other persons, and in other instances, pursuant to the law.” Labour Law (Official Gazette of the Republic of Serbia no. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17, 113/17, 95/18) Art. 117, para. 1.
Although the Labor Law refers to the term “paid leave” for absences for a maximum of five working days, by interpreting the provisions cited above, we can conclude that, in the current situation, the employer has the option of referring employees to paid leave with a pay of at least 60% of average salary.
In any case, the average salary cannot be lower than the minimum wage set by a decision of the Social-Economic Council.
Although the legislature uses phrase “cannot be lower than”, the above does not mean that the employer is not entitled to pay this remuneration even in higher amounts, even in full amount of salary, even in the case of employee absence from work.
Also, the Art. 117. para. 1. of Labour Law implies that it is possible to have adiscontinuation of work regurdless the order of the competent state authority, and even the employer itself can establish discontinuation of work, in which case he is obliged to pay compensation of salary.
Work from home and temporary relocation
In the provisions of the Labor Law which defines all possible ways of employment contracting (a definite, indefinite term, etc.), also prescribes that labor relations may be entered into for performing work outside the employer’s premises, i.e. at home.
Strictly formally, the modification of contractual working conditions in the case of a concluded employment contract and work performed with the employer with the change of performing work from home is not defined in the provisions of the laws that prescribe the procedure and cases of modification of contractual working conditions through the conclusion of the annex.
Considering the circumstances of the particular case, specially the existence of force majeure and suggested homeisolation, as well, we believe that the employercould refer employees to work from home withoutconcluding contract annexor any other formal contract.
On the other hand, if the activity and organization of the work of the employer allow it, one of the possible ways of organizing work in extraordinary circumstances is the temporary transfer to another corresponding work, needs of the process and organizationof work, in order to perform certain jobs without delay. In this case employee should pass a writ instead of making an offer for contract annex or a contract annex itself.This transfer lasts for a maximum of 45 working days and the employee retains the earning of the previous job, if it is more favorable for him.
Reduction of the full-time work
Through general document employee is able to determine part-time work that may stipulate shorter working hours than 40 hours per week, but never shorter than 36 hours per week.
At the same time, the Law defines part-time contracts, the introduction of which is subject to the same notes as in the previous paragraph regarding the change of contracted working conditions.
NOTE: THE DECISION OF THE STATE OF EMERGENCY IS SUPPLIED WITH ADDITIONAL MEASURES AND COMMANDS IN WHICH ARE INVOLVED LABOR RELATIONS. THESE ADDITIONAL EXPLANATIONS WOULD BE EXTRAORDINATED IN CASE THAT SUCH MEASURES MAY INCLUDE THE EMPLOYER’S ACTIONS AND DUTIES.
Disclaimer: This text is written for informational purposes only as well as to give general information and understanding of the law, not to provide specific legal advice. For any additional information feel free to contact us.