Due to the epidemic of the coronavirus SARS-Cov2 which spreads disease COVID-19, the Republic of Serbia declared the state of emergency on March 15 th 2020 and the government took measures in order to prevent the spread of infection.
In one way or another, all the measures impact the businesses, legal entities, and entrepreneurs, as well as the life of employees and employers. Primarily this refers to the restrictions of freedom of movement and freedom of assembly, as well as the limitation of working hours and obligations regarding work organization in companies, cafes, restaurants, bars, shopping malls, markets…
Additionally, the government imposed measures of limitation of retail prices and margin for certain products, restrictions on the organization of games of chance, medicine, and certain disinfectants export ban, ban on the export of certain groceries and protective equipment, as well as quarantine of the employees that come from abroad and the restriction on public transport which causes issues of employees transportation.
Regarding these limitations, which will soon be extended, the question is how to organize the work of businesses, legal entities, and entrepreneurs? Employers have to respond rapidly to such measures in organizing work processes in companies, otherwise, they may be find breaching regulations. Regulations are being enacted on a daily basis, while applying to all the employers immediately.
Employers, directors, managers and other authorities within the company are liable to introduce such measures since they manage a large number of employees and decide on business activities within the company. These measures protect the fundamental constitutional and human rights – the right to life, so they are more than ever exposed to handle the whole process and avoid the criminal charges, litigations and inspection measures.
The Government of the Republic of Serbia rendered the Decree on organizing the work of employers during the state of emergency (Official Gazette of the RS, No. 31/2020) on March 16 th 2020, which oblige employers to allow employees to work from home, as well as to introduce alternative measures under the decree conditions.
Employers who can organize the employees to work from home are more likely to organize their business activities lawfully. This mainly refers to the businesses performing activities that are not strictly dependent on the employer’s premises. However, the other group of employers are certainly much more affected. This applies to both companies working 9 to 5, and those which work in shifts and at night.
Considering the state of emergency, employers are obliged to organize the work process in accordance with the prescribed measures if they intend to continue with the business activity. These measures have a very significant impact on companies. Therefore, here, we will try to point out all the varieties of organizing work from the perspective of the prescribed measures and the Employment Act. It should be emphasized that in order to decide on the model of organizing the work, each employer should consider each detail carefully. Each move of the employer in order to introduce any of the measures explained here below has to be done with thorough analysis and argumentation, otherwise, employees may find the way to file claims against employers in order to fulfill their legal rights.
Remote work means performing business activity outside the employer’s premises, mostly from home. This is certainly the most convenient for the IT industry, considering the nature of its business.
For employers, work from home means that they have to be aware of the rule of equal pay for equal work which is not dependent on the place of work. The employee retains the right to rest in accordance with the law, while some of the aspects of the employment relationship with the employee who works from home may be changed and have to be changed to be in compliance with the factual situation.
Also, the employer is obliged to define the supervision of employee’s work and quality of work, to provide and determine the usage of work equipment, as well as compensation for such usage. The specific expenses that occur for the employee during the remote work may have specific tax implications.
2. SHIFT WORK, NIGHT WORK, MEETINGS AND BUSINESS TRIPS
In case the nature of the activity does not allow work from home (e.g. manufacturing industry), the government introduces the obligation of the employer to organize shift work if the work process allows it and if it does not require additional expenses. Since shift work usually includes night work, the employer is obliged to act in accordance with the instructions on the movement of workers during the curfew, under the threat of material and criminal liability.
All the business meetings must be held without direct contact between the persons attending the meeting (e.g. video calls), all the business trips abroad are impossible due to closed borders, while
business trips in the country are restricted by various measures (curfew, assembly ban).
3. PART-TIME WORK
The state of emergency will undoubtedly lead to a reduction in the volume of work. There is a solution for this by introducing the employee in a part-time work regime.
So, this is one more option for the companies to continue performance of business activities with the employees who already work for them. Part-time work allows employees to earn income for their families.
Introducing the employee in a part-time work regime has to be done without the discrimination and in accordance with the other rights of employees.
4. MINIMUM SALARY
If the financial situation of the company or entrepreneur does not allow full payments of the salary because of the reduction of workload and disruptions due to the imposed measures, the employer is allowed to determine the payment of minimum salary, while indicating the reasons for such decision. While implementing minimum salary, the company shall pay an extra attention to the imperative rules of the Employment Act and procedural rules for introducing a minimum wage. Therefore, it is not recommended to introduce minimum salary without professional assistance, as such measures are so strict that require companies bylaw amendments and alertness!
5. COLLECTIVE ANNUAL LEAVE
Collective annual leave is also a solution during the situation of state emergency.
The Employment Act stipulates that in case of using a collective annual leave with the company or in the organizational part of the company, the employer may decide on annual leave and display the decision on the notice board at least 15 days before the first day of annual leave.
Collective annual leave is a temporary solution because the duration of a state of emergency cannot be predicted and may be extended indefinitely in accordance with the constitution. Therefore, companies need to find a new solution once the collective vacation ends.
6. WORK SUSPENSION
Companies and entrepreneurs shall organize the work processes in compliance with the laws governing health, safety, and protection from infection at work, during the COVID-19 epidemic. In the event, companies cannot comply with these regulations, or they are imposed restrictions by the government (e.g. cafes, restaurants and other may sell food and beverage exclusively using counters or delivery service) or forbidden to perform a business activity (shopping malls, as well as boutiques, restaurant chains and cafes in shopping malls or other large indoor facilities, private kindergartens, etc.), it may decide to go with work suspension.
Additionally, an employer may decide to suspend the work process during the COVID-19 epidemic if there is a justifiable reason and if the work process allows it. Also, a work suspension is an option in case of reduced volume of work. Work suspension, in any case, must comply with all legal provisions in order not to result in mass claims for damages by employees.
In all these cases, work suspension leads to the employee’s right to monetary compensation. The amount of salary during paid leave varies depending on the reason for work suspension, which is very important from the aspect of the employer’s finances, so companies must act legally without the discriminating employees.
7. UNPAID LEAVE
Unpaid leave is more in favor of employers. During the unpaid leave, all the employee’s rights and duties shall not be exerted, and the employee does receive salary or compensation of salary.
However, it is important to stress out that such a request for unpaid leave may be submitted only by the employee to the employer and not the other way around. A company or entrepreneur is only allowed to decide on whether it will allow the employee to use unpaid leave or not. Therefore, it is significant that initiation for unpaid leave cannot come for the employer, so the company shall not use unpaid leave to resolve the issue of reduced volume of work.
The Employment Act does not stipulate reasons when a company is entitled to approve unpaid leave, nor does it stipulate the maximum period of unpaid leave. Therefore, the employer has discretionary power to approve the unpaid leave, while during the state of emergency unpaid leave is expected to be misused and unlawfully applied which may lead to a breach of employee’s rights and run of litigations.
WHAT IS THE BEST SOLUTION?
Unfortunately, it is not possible to give one answer to this question. Depending on the activity of the company and the number of employees, it is necessary to find the most appropriate solution in each particular case. Solutions explained in this text may be combined and applied together. Given that disruptions in businesses are fault neither of employees nor employers, compromise solution minimize economic consequences for both sides. In each case, the employer shall have in mind financial aspects of business, but also the fact state of emergency will pass and it should think of ensuring already trained employees to get back to work once the emergency is over.
In any case, whatever solution employers and employees find the most suitable, it is necessary to thoroughly consult provisions of the Employment Act and other regulations, and its interpretation by the competent state authorities, in order to avoid any possible faults that could later give rise to legal action.
*The content of this blog is provided for informative purposes only and does not constitute legal advice.