PROVISION OF PAID AND UNPAID LEAVE UNDER EMERGENCY SITUATION

01.04.2020

 

PROVISION OF PAID AND UNPAID LEAVE UNDER EMERGENCY SITUATION

 

On 13 March 2020 the National Assembly of the Republic of Bulgaria, by its Decision, declared a state of emergency.

At the same time, pursuant to Art. 63 of the Law on Health, by its Order No. RD-01-124 of March 13, 2020, the Minister of Health introduced restrictive measures affecting certain economic activities, and the work of the employees mentioned in the order was terminated.

Another large group of operators, whose number is growing daily, are experiencing serious difficulties in operating normally for various reasons, directly or indirectly related to the declared emergency.

The first actions of employers in the situation that has arisen in the mass case are related to the provision of employee leave either because they cannot allow them to their jobs in non-functioning sites or because there is a drastic reduction in the amount of work and such cannot be assigned. On the other hand, due to the complicated epidemic situation, attendance at educational institutions was discontinued and some employees were forced to take leave to provide care for their children not attending schools and kindergartens.

     Until March 24, 2020, no changes were made to the labor legislation and employers only had in place existing and well-known payment mechanisms, respectively. unpaid leave to their employees. Against this background, a Law on Measures and Actions during the State of Emergency was adopted, promulgated by a decision of the National Assembly of March 13, 2020 (LMASE). With the adoption of this law, new legal possibilities have been created regarding paid and unpaid leave, which are precisely the subject of consideration here.

PAID LEAVE UNDER EMERGENCY

Usually, the use of paid leave implies the implementation of a procedure which is 'activated' at the initiative of the employee through a leave application - in whole or in part, on the basis of which the employer authorizes or does not authorize the use (usually by order).

Therefore, the main features of this rule of principle are that the right to leave is exercised at the request of the worker and with the permission of the employer.

The existing regulations (and before March 24, 2020), exceptionally, provided for the employer to be able to provide paid leave unilaterally, ie. and without the consent of the employee. Three hypotheses were known in which paid leave may, exceptionally, be granted unilaterally by order of the employer. They are contained in Article 173, Paragraph 4 of the Labor Code and Article 37b, Paragraph 1 of the Ordinance on working hours, breaks and vacations. These are cases where:

  1. the employer has declared a stay of more than 5 working days;
  2. the concurrent use of the leave by all employees is provided for in a normative act or in the internal labor regulations;
  3. the employer has invited the employee in writing to request the use of his leave by the end of the calendar year to which he is entitled, but the employee has not done so by the end of the same calendar year.     

In addition to these existing and well-known options, new rules for unilateral provision of paid leave, established through the LMASE, were adopted. Two new texts have been adopted regulating the unilateral provision by the employer of paid paid leave without the consent of the employee.

     One text is located in the main body of the LMASE (art. 7, para 2), which means that this provision can only be applied temporarily while this extraordinary law is in force.

     The other possibility for unilateral provision of paid leave, without the consent of the employee, became part of the Labor Code (Art. 173a, Para. 1). This provision will thus be able to apply in the long term, both in the current state of emergency and in any new emergency situation in the future.

Here are both texts:

Article 7, paragraph 2 of the LMASE:

(2) Employers and appointing authorities may grant up to one-half of the paid annual leave to the employee without his or her consent.

Article 173a, para 1 of the Labor Code:

Art. 173a (1) Where, because of a declared state of emergency, the work of the enterprise, part of the enterprise or individual workers and employees is terminated by an order of the employer or with an order of a state body, the employer shall have the right to grant paid annual leave to the employee and without his consent, including an employee who has not obtained 8 months of service.

     At first glance, an impression of contradiction is created, since the former limits the possibility of unilaterally granting leave up to half its size, and the full amount of the leave may be granted under the possibilities provided for in the LC. In fact, it is a matter of settling different hypotheses, and in Article 7, paragraph 2 of the LMASE, the employer or the appointing authority may unilaterally order the use of paid leave without the need for any additional condition, provided that do this within the term of the special law, i.e. for the duration of the current state of emergency. When granting leave under the new Article 173a, paragraph 1 of the Labor Code, the legislator provides several conditions for the employer to take advantage of this opportunity.

In order to explain the new texts in full, we will note their specifics by comparing them:

What are the differences between Art. 7, Para 2 of LMASE and Art. 173a, para 1 of the Labor Code?

  1. In terms of their action over time:
  • Art. 7, Para 2 of LMASE – special provisional provision applicable only to the period during which the special and temporary law is in force - LMASE (Law on Measures and Actions during the State of Emergency, announced by a decision of the National Assembly of March 13, 2020)
  • Art. 173a, para 1 of the Labor Code - part of the Labor Code and has a long-term effect, ie shall apply in each case of a declared state of emergency, both present and future, for the duration of the state of emergency and until its cancellation.
  1. 2. With regard to their action against persons:
  • Art. 7, Para 2 of LMASE – this rule can benefit both the employer and the appointing authority, i.e. it applies to both employees and civil servants; applies to employees who have at least 8 months of service (no matter when and how many employers are acquired).
  • Art. 173a, para 1 of the Labor Code – applies only to employees in employment relationships, incl. and those in public administration, but not applicable to public officials; can also be applied to employees who have no 8 months of service.

Conclusion from this comparison:

There is no regulated possibility for the appointing authority to grant civil servants more than half paid leave without the employee's consent.

  1. In terms of the prerequisites that must be available for it to be realized:
    • Art. 7, Para 2 of LMASE – there is no such mandatory requirement. The rule applies in all cases to all employment relationships, but only for the duration of the LMASE.
    • Art. 173a, para 1 of the Labor Code – mandatory prerequisites are required. The employer can apply this possibility only if the following is available:

     It applies only "where, owing to a declared state of emergency, the work of the enterprise, part of the enterprise or individual employees is terminated by an order of the employer or an order of a public authority", i.e. the prerequisites are:

-> State of emergency declared;

-> Suspension due to a state of emergency;

-> The termination of employment is based on an Employer Order or a Governmental order.

The termination of employment may cover the whole undertaking, part of it or individual employees. Article 173a, paragraph 1 may be applied only to those employees whose work has been terminated.

  1. As regards the amount of paid annual leave, the use of which the employer may unilaterally, without consent, provide to the employee is different:
  • Art. 7, Para 2 of LMASE – as we have already mentioned - up to 1/2 of paid annual leave.
  • Art. 173a, para 1 of the Labor Code – there is no such limit, it can be the whole amount of paid annual leave.

NEW OPPORTUNITY FOR EMPLOYEES to take paid annual leave at his request, without the right of the employer to refuse:

     Regarding the use of paid annual leave, in principle, the so-called “permit regime” is generally applicable, according to which the employer has the last word to allow or not to use. With the adoption of the new Art. 173a of the Labor Code, in its para 2 an exception from the procedure established by law is introduced.


Art. 173a, para 2 of the Labor Code: (2) The employer is obliged to allow the use of paid annual leave or unpaid leave in case of declared emergency at the request of:

  1. a pregnant worker and an worker in an advanced stage of in-vitro treatment;
  2. mother or adoptive parent of a child up to 12 years of age or of a disabled child regardless of age;
  3. a worker or employee who is a single father or adoptive parent of a child up to 12 years of age or a disabled child, regardless of age;
  4. 4. a worker or employee who is under 18 years of age;
  5. employee with permanent disability 50 and above 50 per cent;
  6. an employee with the right to protection upon dismissal under Art. 333, para. 1, items 2 and 3

Similar to the quoted provision, it was adopted as a text with the new Article 64a, para 1 of the Law on the Civil Servant:

Art. 64a. (1) In case of a state of emergency and when it is not possible to introduce telework in the home environment under art. 51a, the appointing authority shall be obliged to authorize the use of paid annual leave or unpaid leave at the request of:

  1. a pregnant employee and employee in an advanced stage of in-vitro treatment;
  2. mother or adoptive parent of a child up to 12 years of age or of a disabled child regardless of age;
  3. an employee who is a single father or adoptive parent of a child up to 12 years of age or of a disabled child, regardless of age;
  4. an employee with permanent disability of 50 and more than 50 percent;
  5. Employed employee or employee suffering from a disease specified in the ordinance of the Minister of Health under Art. 333, para. 1, item 3 of the Labor Code.

     In these circumstances, the employer and the appointing authority are not entitled to judgment and are obliged to grant paid leave if a request to that effect, by an application, has been received by the employee.

      Here, there is a subjective right conferred on certain categories of workers, which the legislature exhaustively refers to. If the employee falls into any of the categories explicitly mentioned, he or she may state his / her request and the employer is obliged to provide the requested leave.

     The prerequisites that must be available in order for the hypothesis of Article 173a, paragraph 2 of the Labor Code, respectively. Article 74a, paragraph 1 of the Law on the Civil Servant are the following:

  • A state of emergency is declared;
  • The employee falls within one of the explicitly listed categories of persons;
  • Request from the employee to the employee - application on the grounds of art. 173a, paragraph 2 of the Labor Code.

UNPAID EMERGENCY LEAVE 


 

     The main conclusion is that unpaid leave, even during the state of emergency, can be granted and used only at the request of the employee, in accordance with the procedure of Article 160 of the Labor Code.

     In principle, unpaid leave is provided in the legislation only as a legal option and not as a right in favor of the employee. This is because it depends solely on the will of the employer not only when and in what amount to provide unpaid leave, but also whether it will be allowed at all. A new exception to this principle rule was created by the provisions of Article 173a, paragraph 2 of the Labor Code cited and commented above, and Article 64a, paragraph 1 of the Law on the Civil Servant. At the request of the employee, in addition to paid leave, the employer is obliged to provide the use of unpaid leave, subject to the same prerequisites and conditions that were considered above regarding the use of paid leave. In this case, the entire period of unpaid leave, without restriction, shall be recognized as work / service experience in accordance with the explicit provision of Article 173a, paragraph 3 of the Labor Code, respectively. Art.64a, Para 2 of the LCS.

     One additional point should be noted when discussing changes related to unpaid leave. The government has publicly announced various measures to promote employment during the state of emergency. One of these publicly announced measures is the envisaged possibility of providing interest-free loan, without collateral, up to BGN 4,500 for employees for the time they take unpaid leave.