ANALYSIS OF THE OPINION OF THE MINISTRY OF LABOR

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ANALYSIS OF THE OPINION OF THE MINISTRY OF LABOR

Analysis of the Opinion of the Ministry of Labor, Employment, Veterans’ and Social Affairs on the rights and obligations of employees and employers during the declared state of emergency caused by the COVID-19 virus epidemic

On March 15, 2020 “The Decree on Organizing Employers during the state of Emergency” was adopted, which has been in force since March 16, 2020 (hereinafter referred to as “the Decree”). The Decree obliges employers to organize safe work for their employees during the period of the state of emergency caused by the COVID-19 virus epidemic. However, many issues regarding the rights and obligations of employees and employers remained unclear, and therefore required a more detailed analysis of the state of emergency situation, which is why the Ministry of Labor, Employment, Veterans’ and Social Affairs published an official Opinion on the Decree and any concerns that employees and employers face in these extraordinary circumstances (hereinafter referred to as “the Ministry’s opinion”).

Bearing in mind the importance of the Decree for the preservation of the Serbian economy during this difficult period, we will endeavor to analyze the most important conclusions contained in the Ministry’s Opinion below.

Namely, when it comes to the work of an employee from home, it is recommended in circumstances where the employer has the organizational conditions to carry out work from home, and if this is consistent with the nature of the activity of the employer. In the situation when an employee works from home, in accordance with the Labor Law, or the Decree on organizing the Employers during the state of emergency, the employee has the right to salary remuneration, as well as the employee who works at his workplace, except for the transportation costs for arrival and leaving work, as well as excluding the right to reimbursement of other expenses related to the organization of work in this way.

Then, when it comes to organizing work in public administrations and state institutions, in addition to The Decree on Organizing Employers during the state of Emergency, and other orders regarding preventive measures to prevent the spread of the COVID-19 infectious disease caused by the Sars-Cov-2 virus, The Ministry of State Administration and Local Self-Government also issued a “Recommendation for Organizing Work in Public Administrations and State Institutions”. This Recommendation is primarily applied in government bodies, public agencies, public services and local self-government units, and if the nature of private-sector employer activity permits, it can be applied in that sector as well.

Namely, this Recommendation primarily protects persons with established chronic diseases, then persons older than 60 years and the parent of a child up to the age of 12 years, especially if the parent exercises parental rights himself, or the other parent has a work obligation. For these employees, it is necessary to enable work from home, in accordance with the work plan and schedule that the employer, or manager, is obliged to determine for each employee. However, if the nature of the activity of the employer does not allow work from home, it is necessary to organize work in shifts, which would involve a smaller number of employees and persons employed at the same time indoors. Work in shifts must certainly be in accordance with all general, special and extraordinary safety measures relating to the hygienic safety of facilities and persons in accordance with the Law on the Protection of the Population from Infectious Diseases.

Furthermore, the employer should allow one parent with a child up to the age of 12 years to work from home, and if the work process of the employer is such that it is impossible to organize work from home, it is necessary to organize shift work so that the work schedule of the employed parent is arranged in a way that does not match the work schedule of the other parent, who also has a work obligation.

In addition, The Ministry’s opinion further clarifies probably one of the most challenging situations, both for the employee and for the employer, which is self-isolation, or quarantine of the employee, in fact, what is the status of the employee who finds himself in self-isolation, or quarantine on the basis of a decision, or other act of the competent authority.

Namely, according to the Law on Health Insurance, when an employee is temporarily prevented to work because of the prescribed measure of mandatory isolation as a germ-carrier or because of infectious diseases in his environment, the employee is entitled to salary remuneration for the first 30 days of absence, paid by the employer, and from 31 day of absence the employee’s salary remuneration is paid by the Republican Health Insurance Fund.

The employee, who is in self-isolation or quarantine, must contact the employer by telephone, and it is necessary to send a scanned or pictured said act of the competent authority by email or other electronic means of communication. The family member or the employee himself must submit a certificate of temporary disability to work, with remittance to the employee as soon as the reasons why the employee could not provide it cease to exist. The right to remuneration of earnings under the Health Insurance Act is not available to the insured person if that person intentionally prevented healing or abused the right to use absence from work due to temporary impediment to work in another way (for example, violation of self-isolation/quarantine). Additionally, employees who are hired on the basis of a contract outside the employment relationship are not entitled to salary remuneration (unless this contract establishes financial compensation in the case of non-performing jobs for which the contract was concluded).

This brings us to conclusion that in the case of employee’s self-isolation or quarantine, and for the purpose of health surveillance of infectious disease caused by the Sars-cov-2 virus, the salary remuneration is regulated by a special act of the Government, and that the employee is obliged to electronically provide the employer, as soon as possible, the competent authority’s decision on self-isolation or quarantine.

The Ministry further clarifies one of the possible options during the state of emergency, namely the possibility of exercising the right to vacation, in accordance with Article 75, paragraph 1 of the Labor Law, which provides that depending on the need for work, the employer decides on the time of use of the annual vacation, with prior consultation of the employee. In this case, the employee is entitled to salary remuneration equal to the average salary in the previous 12 months, in accordance with Article 114, paragraph 1 of the Labor Law.

In addition, further analysis of the Labor Law leads to another potential solution to this challenge, which is envisaged institute in Article 116, which is the possibility of termination of work, that is, the reduction of the volume of work that occurred without the fault of the employee. In this case, the employee is entitled to a salary remuneration of at least 60% of the average salary in the previous 12 months, provided that this salary cannot be less than the minimum wage established in accordance with this Law, and may last no longer than 45 working days in the calendar year. Exceptionally, in the case of interruption of work, that is, the reduction of the amount of work that requires longer leave, the employer may, with the prior consent of the Minister, refer the employee to leave longer than 45 working days, with the salary remuneration referred to in paragraph 1 of this Article.

By further analysis of the Labor Law, the Ministry comes to another institute, which is envisaged in Article 117, and that is applicable in a situation where the employer is unable to provide his employees with the protection of life and health at work, in accordance with all preventive measures issued by the competent authorities to combat COVID-19. This is an opportunity for the employer to terminate his work due to the lack of safety and health protection at work, which is a condition for further smooth performance of work without endangering the life and health of employees, based on the order of the competent state body or the competent body of the employer. In this case, the employee has the right to salary remuneration in the amount stipulated by the General Act and the Employment Contract, and additionally, other cases in which the employee is entitled to salary remuneration may be determined in accordance with the law, the General Act and the Employment Contract.

Additional option that was presented within the Ministry’s opinion is the possibility of the employee’s absence from work due to illness, as well as the possibility of paid and unpaid absence of the employee from work, which is foreseen by the provisions of Articles 77, 78 and 115 of the Labor Law.

Namely, in the case of temporary absence from work due to illness, an employee is entitled to salary remuneration during his absence from work to at least 65% of the average salary, or up to 100% of the employee’s salary in case of injury at work or occupational disease.

When it comes to paid leave of an employee, he is entitled to salary remuneration in the amount of the average salary in cases of marriage, childbirth, serious illness of a close family member, death of a close family member, voluntary blood donation, etc.

In the case of unpaid leave of an employee, the employer may, in accordance with the Labor Law, with the previous express consent of the employee, grant him right to unpaid leave. During unpaid leave, the employee shall be entitled to the rights and obligations arising from the employment relationship, unless otherwise provided for by Law, General Act and Contract of Employment for individual rights and obligations.

The Ministry’s opinion further explains that there is a possibility of termination of the Employment Contract by the employer, in accordance with the provision of Article 153 of the Labor Law, if due to technological, economic or organizational changes, the need for permanent employment of employees ceases. Before the termination of the employment contract, the employer is obliged to pay the employee severance pay, in accordance with Article 158 paragraph 1 of the Labor Law.

If the employer does not pay the severance pay to his employees and terminates their Employment Contracts, the inspector will return to work all those employees whose employer did not comply with the provisions of the law. The amount of severance pay is determined by a Collective Agreement, a Rulebook or an Employment Contract, and may not be lower than the sum of one-third of the employee’s earnings for each completed year of employment with an employer.

In any case, the employee is entitled to unemployment benefit. This remuneration is paid to an employee who has been working for an undefined period and has been declared redundant, a part-time employee, and a person who, on the basis of the contract, performs temporary and occasional jobs. The unemployment benefit is paid to an employee who had been insured continuously or intermittently for a period of at least 12 months (in the last 18 months).

Remuneration to this person shall be credited from the first day after the termination of compulsory insurance if the person applies for and submits a request to the National Service within 30 days from the date of termination of employment or termination of insurance. To the unemployed person who submits the request, after the expiry of the 30-day deadline, the unemployment benefit is due from the day the request is submitted. Since March 23, 2020 the National Employment Service provided the possibility to submit an electronic application form on their website and a possibility to electronically apply for the use of this unemployment benefit.

Finally, it is important to emphasize that, regardless of the fact that a state of emergency has been introduced in the Republic of Serbia, the employee still has all the statutory rights arising from employment relationship and on the basis of work, and there are no obstacles to protection of employee’s rights by initiating regular extra-judicial and court proceedings.

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