In the current context generated by the coronavirus crisis (Covid-19), employers must pay particular attention to implementing measures designed to prevent the risk of contamination of employees in the workplace and the spread of the virus.

These measures will consider on the one hand the training of the employees on the health and safety measures, and on the other hand they will aim, as far as possible, to implement flexible working schedules for employees.

If the restrictions imposed by the authorities for limiting the spread of the virus cause the reduction or suspension of the employer’s activity, the latter may use a series of measures, established unilaterally or in agreement with the employees, in order to reduce the negative effects until the activity is restored.

A. Work health and safety

• Employers are responsible for providing employees with a safe and healthy working environment.
• Employers should inform and train the employees with regard to the hygiene rules necessary to be respected in order to reduce the risk of contamination. It is advisable to display clear and explicit information at the workplace, in appropriate and easily accessible places for employees, and in restrooms.
• Both employers and employees should pay more attention to general hygiene rules. The minimum hygiene rules are constantly announced through the media (radio, TV) and are published on the Ministry of Health website: washing hands as often as possible with water and soap or using disinfectant based on alcohol, avoiding contact with people which are suspected of acute respiratory infections, avoid touching the eyes, nose and mouth, covering the mouth and nose in case of cough or sneezing, cleaning all surfaces with disinfectants based on chlorine or alcohol, using a protective mask in case there are suspicions of illness or in case of providing assistance to the sick persons, etc. These rules must be detailed in the training provided by the employer at the workplace.
• In addition to the minimum hygiene rules, the employer must establish, depending on the specific activity of the employees and the working environment, other measures necessary to reduce the risk of contamination.
• The Ministry of Labor and Social Protection recommends, among others, the following measures in order to prevent the spread of coronavirus infection:

(i)      performing an assessment at the employer’s level in order to prioritize the essential or relevant activities from the non-essential ones, with the observance of the employee’s rights to safety and health at work;

(ii)      determining the nature and level of risk for any activity that may present a risk of exposure to COVID-19 and establishing the following measures: limitation of exposure, preparing of a plan of measures drawn up based on the recommendations of the occupational doctor, immediate notification of the competent territorial Public Health Directorate;

(iii)     drawing up a plan to ensure the continuity of the activity in case a significant number of workers could not perform their activity at the workplace organized by the employer. The following measures could be taken: identification of jobs for which continuity must be ensured, identification of employees that can be moved from one job to another so as to ensure the continuity of the activity (according to their qualifications/competences), identification of employees who have the IT infrastructure needed to work from home;

(iv)     the application of the procedures established at national level by the Ministry of Health in case the employee has symptoms associated with respiratory infections at the workplace.

• In the case of an employee confirmed with COVID-19, the employer has the obligation to inform the Public Health Directorate from the area where it performs its activities, in order to start the procedures for carrying out the epidemiological investigation.
• The employers should update the rules of health and safety at work according to the evolution of the virus spread and the measures ordered by the authorities.
• The employer has the obligation to inform the employees on the procedure of granting the medical leave in case of quarantine and isolation at home.
• The employer has the obligation to provide the proper hygienic and sanitary materials.

B. Flexible work schedules and reducing meetings and trips

• Depending on the field of activity, the employers may establish for limited periods work flexibility measures to prevent or limit the exposure of employees to traffic congestion and confined spaces, such as:

(i)      working from home or telework;

(ii)      individualized work programs, by setting up different hours of starting / ending the work schedule.

• In all the situations mentioned above it is necessary:

(i)      to obtain the employee’s agreement;

(ii)      to conclude an addendum to the employment contract;

(iii)     to include in the addendum the mandatory elements provided by the Labor Code.

• It is advisable to replace face-to-face meetings with telecons or video-conferences or correspondence by electronic means.
• It is advisable to suspend or reduce as much as possible business travels.

C. Possible measures to reduce / suspend the activity due to the impact of the virus spread and the restrictions imposed by the authorities on the performance of employer’s activity

Reduction of the working schedule as a result of the temporary reduction of the activity

• The employer can take the measure of temporarily reducing the activity for periods exceeding 30 working days.
• The work schedule can be reduced from 5 days to 4 days per week with the appropriate decrease of the salary.
• The measure can be taken at the level of the employer or only at the level of some departments / sections of the employer.
• The employer must consult the representative trade union at the level of the employer / employees’ representatives in advance.
• The measure will last until the situation that caused the reduction of the working schedule has been remedied.
• In order to implement the reduction of the work schedule, the employer must issue a decision containing, among others, the reasons that determined this measure and the departments / sections affected.
• The decision must be communicated to the representative trade union / employees’ representatives, as well as to the affected employees.

Suspension of the employment agreement during the temporary reduction / interruption of the activity

• The employer may take the measure of temporary reduction or temporary interruption of the activity.
• If the employer has at least 20 employees, it must consult the trade union / employees’ representatives in advance.
• During the temporary reduction / interruption of the activity, the employees involved in the reduced or interrupted activity, who do not carry out any activity, will receive from the employer an allowance of at least 75% of the base salary.
• During the temporary reduction / interruption of the activity the employees are at the disposal of the employer.
• The employer may at any time to decide resuming the activity.
• In order to implement the temporary reduction / interruption of the activity, the employer must issue a decision containing, among others, the reasons that determined this measure.
• The decision must be communicated to the trade union / employees’ representatives, as well as to the affected employees.

Suspension of employment agreement due to force majeure

• According to the Labor Code, the individual employment agreement is suspended by virtue of law in case of force majeure.
• An analysis on the incidence of force majeure should be carried out on a case-by-case basis, depending on the impact of the virus spread and the restrictions imposed by the authorities on the employer’s activity.
• If the spread of the virus and the restrictions imposed by the authorities determine the impossibility of carrying out the activity by the employer, the latter can ascertain by means of decision the occurrence of the force majeure case and the suspension of the employment agreements of the employees.
• During the suspension of the employment agreement, the performance of work by the employee and payment of the wage rights by the employer are suspended.

Granting paid days off and subsequent compensation with overtime

• Employers have the possibility to grant paid days off to their employees during periods of reduced activity.
• The days off paid by the employer will be compensated with the overtime performed during the next 12 months.
• The implementation of the measure of granting the days off paid with the subsequent compensation by overtime is made by decision issued by the employer and communicated to the employees.

Temporarily converting full-time employees to part-time employees

• Employers can agree with the employees the temporary modification of the working time, from full time to part time, and the corresponding change of salary.
• The measure can be implemented only with the agreement of the employee by signing an addendum to the employment agreement.
• The addendum must contain the mandatory elements provided by the Labor Code for part-time employment agreements.

Unpaid leave

• Employers can grant unpaid leave at the request of the employees.
• If the employer approves the request for unpaid leave, it will issue a decision in this respect, whereby it will also decide the suspension of the individual employment agreement during the leave period.

Dismissal for reasons not related to the employee

• If the spread of the virus and the restrictions imposed by the authorities for limiting its spread cause significant disruption of the activity of the employer, without the expected possibility of recovery in a reasonable period of time, the employer can resort to the most drastic measure provided by the labor legislation, respectively dismissal of employees for reasons not related to the employee;
• Depending on the number of employees at the employer’s level and the employees affected, the measure may be individual or collective and requires compliance with all formalities and procedures provided by labor legislation for its application (consultations, notice, informing authorities, observance of the dismissal prohibitions, etc.).

Ana-Maria Placintescu