02.11.2022

USE OF LEAVE DURING A PANDEMIC

Under what conditions is leave used in a declared state of emergency or a declared emergency epidemic situation?

With the amendments to the Labor Code of August 1, 2022, the provision regarding the use of leave in the event of a declared state of emergency or a declared emergency epidemic situation was amended. In it, a change is made regarding the requirement for the employee's acquired work experience, as a condition for the use of this type of leave.

According to the changes, when due to a declared state of emergency or a declared emergency epidemic situation by order of the employer or by order of a state body, the work of the enterprise, part of the enterprise or individual employees is suspended, the employer has the right to provide the employee with paid annual leave or the employee and without his consent, including a worker or an employee who has not acquired 4 months of work experience.

The law also stipulates that the employer is obliged to allow the use of paid annual leave or unpaid leave in the case of a declared state of emergency or a declared emergency epidemic situation at the request of:

1. a pregnant worker or employee, as well as a worker or employee in an advanced stage of in-vitro treatment;
2. mother or adoptive mother of a child up to 12 years of age or of a child with a disability regardless of his age;
3. a worker or an employee who is a single father or adopter of a child up to 12 years of age or of a child with a disability regardless of his age;
4. a worker or an employee who has not reached the age of 18;
5. a worker or employee with a permanently reduced working capacity of 50 and over 50 percent;
6. a worker or an employee entitled to protection in the event of dismissal under some of the provisions of the law.

It is important to specify that the time during which this type of leave is used is recognized as work experience.

As can be seen, the law gives the right to the employer to provide paid annual leave to the worker or employee without his consent, including to a worker or employee who has not acquired 4 months of work experience. This right can be exercised under the following objective conditions:

- declared state of emergency;

- declared emergency epidemic situation;

- order of the employer to suspend the work of the enterprise, part of the enterprise or individual employees;

- order of a state body to suspend the operation of the enterprise, part of the enterprise or individual workers and employees.

In addition to the above prerequisites, in order to exercise this possibility of unilaterally granting paid annual leave to workers/employees who are practically unable to work, it is also necessary for the employer to issue an order on this basis and to determine which worker, from at which time and in what amount it unilaterally grants his paid annual leave.

It should also be noted that the employer can also grant paid leave to employees who do not have the minimum necessary work experience, giving them the right to use paid annual leave under the general rules. It is good to know that the granting of paid annual leave is tied to the period of suspension of work. In other words, the amount of paid annual leave that the employer will provide unilaterally to the worker and the employee must coincide with the period specified in the order to suspend work.

The amount of paid annual leave granted in the event of a declared state of emergency or a declared emergency epidemic situation cannot exceed and cannot be greater than the time specified in the employer's order to suspend work due to a declared state of emergency or a declared emergency epidemic situation, regardless of whether it was issued on the initiative of the employer himself or was issued as a result of the execution of an order of a competent state authority.

Note that the law has not established which paid annual leave is granted - whether for the current year or one that has not been used in previous years. This is a matter of discretion on the part of the employer.

The following conclusions can be drawn from the provision in the law:

1. The amount of leave is determined during the period of declared state of emergency or declared emergency epidemic situation.
2. The leave is granted by an act of the employer, which, however, has a conclusive nature. That is, the act does not authorize the leave, but the leave is authorized directly by law if requested. The act states that leave was requested and began to run for the period of time specified in the request, but no later than the end of the declared state of emergency or a declared emergency epidemic situation.

The recognition of work experience for the time of use of this type of leave does not matter its duration and type, but only whether it was used in connection with the declared state of emergency or a declared emergency epidemic situation.

Reference:

Art. 173a, para. 1, 2, 3 of the Labor Code