Dismissal due to lack of personal protective equipment or flu-like symptoms

11.10.2021

DISMISSAL DUE TO LACK OF PERSONAL PROTECTIVE EQUIPMENT OR FLU-LIKE SYMPTOMS

Comment

According to Art. 275, para. 1 of the Labor Code (LC), the employer is obliged to ensure healthy and safe working conditions so that the dangers to the life and health of the employee are eliminated, limited or reduced.

The Health and Safety at Work Act (HSWA) regulates the rights and obligations of all participants in the labor process regarding the provision of safety and health at work, and employees also have obligations in relation to safety and health at work.

In Art. 126 of the Labor Code regulates the obligations of the employee, and it is explicitly determined that he should appear at work in a condition that allows him to perform the assigned tasks, to comply with the rules of health and safety at work, to comply with internal rules, accepted in the enterprise, and others. Also in Art. 33 of the Health and Safety at Work Act establishes the explicit obligation for each employee to take care of his health and safety, as well as the health and safety of other persons directly affected by his activity, in accordance with his qualification and the instructions given by the employer.

The employer has an obligation to acquaint the employees with the established rules for safety and health at work. This is done by conducting safety and health at work instruction, which is prepared in accordance with the risk assessment in the enterprise. The employer should indicate to the employees that they are obliged to appear at work in a condition that allows them to perform it, including not to appear at work in case of flu-like symptoms, as well as with their obligations to use the provided Personal protective equipment.

The right of the employer to remove the employee from work is regulated in Art. 199, para. 1 LC. This provision stipulates that the employer or the immediate supervisor may temporarily dismiss an employee who is in a condition which prevents him from performing his duties. The temporary suspension from work under Art. 199, para. 1 of the Labor Code is performed by the employer in order to prevent the occurrence of severe consequences for the employee himself, as well as to protect the other employees in the enterprise.

Therefore, the fault of the employee for the occurrence of the objective obstacle to the performance of the work, which is the reason for its removal, is irrelevant.

An important point before starting the procedure for dismissal of the employee is to determine whether there are grounds for this.

Depending on the management structure of the enterprise, the employer or the immediate supervisor establishes the existence of grounds for dismissal.

In cases where the grounds for removal are established by the immediate supervisor, he should immediately notify the employer. The final assessment of the existence of grounds for dismissal is made by the employer.

The legislation does not explicitly provide for the type and form of the act through which the employer exercises his right to dismissal. It is justified to do this by issuing a special document in writing, for example by order. The written order may facilitate the proof of the grounds for removal in the event of a labor dispute related to the rights and obligations of the parties in connection with the work performed.

The provision of Art. 284, para. 2 of the Labor Code obliges the employees to use the special work clothes and the personal protective equipment for their intended purpose. Therefore, the non-fulfillment of the obligations for use of personal protective equipment is a violation of labor discipline, which can be a ground both for initiating disciplinary proceedings and for dismissal of the respective employee. In Art. 199, para. 2 of the Labor Code stipulates that the removal shall continue until the employee regains his fitness to perform the work assigned to him. Therefore, when a case is found in which an employee does not use personal protective equipment, it is possible to quickly remedy the violation by placing them, therefore his rights regarding the accrual and payment of remuneration should not be affected. However, this does not limit the employer's ability to initiate disciplinary proceedings against the employee for non-compliance with his specific obligations.

In view of the ongoing COVID-19 pandemic, it is important that employers do not allow workers or employees or outsiders who show symptoms of acute infectious diseases. Therefore, the removal of workers with such symptoms can be considered as a justified measure to limit the spread of the infection and to preserve the life and health of other employees in the company.

When a worker or employee who shows symptoms of a contagious disease, including fever and/or severe cough, appears at work, it is necessary to remove the person and take measures to establish his health condition, including expertise of working capacity. The examination of the temporary incapacity for work is performed by the health authorities in accordance with the procedure specified in the Ordinance on Medical Expertise (OME).

In the case described, the employee should be referred by the competent health authorities to determine his ability to work. The provision of Art. 16, para. 1 OME stipulates that all laboratory tests and treatment procedures (physiotherapy, X-ray therapy, etc.) of able-bodied insured persons may be performed during working hours with the permission of the employer, without issuing a sick note. In this case, the doctor who performs the examination or consultation issues an official note of insurance, which reflects the time of appearance and the time of completion of the examination (Article 16, paragraph 2 of the OME).

When the health authorities establish temporary incapacity for work, they issue a sick leave, which is a ground for using leave under Art. 162 LC and is for the period until recovery. During the use of this leave, compensation from the state social insurance is paid. The insured (employee) is obliged to present the sick leave or to notify the employer/insurer within two working days from its issuance. In cases where the attending physician or medical advisory commission has established a state of incapacity for work, but the insured refuses to be issued a sick leave, the latter must be issued and officially sent to the employer/insurer where the insured works (Art. 9, para. 3 OME). It is important to keep in mind that the insured person cannot, at his/her discretion, return to work before the expiration of the authorized leave without the permission of the attending physician or medical advisory commission, who issued the sick leave. Insurers (employers) also do not have the right to admit to work the insured (employees) who are on leave due to temporary incapacity for work (Art. 18, para. 1 OME).

When the doctor finds that there are no grounds for using leave for temporary incapacity for work and the employee can perform his/her official duties, the employer is obliged to admit him/her to work. In this case, the appearance before the health authorities can be established with an issued official note, and the right of the employee to receive his/her remuneration must not be restricted. Moreover, in the event of a labor dispute, it can be assumed that the dismissal is illegal and the employer owes compensation in the amount of the gross remuneration of the employee for the time of the illegal dismissal pursuant to Art. 214, para. 1 LC.

It should be borne in mind that according to Art. 8, para. 1 of the Labor Code, labor rights and obligations are exercised in good faith in accordance with the requirements of the laws.

Good faith in the exercise of labor rights and obligations is presumed until the contrary is established (Article 8, paragraph 2 of the Labor Code). In order not to accrue and pay the full amount of the employee's remuneration, the employer should have evidence and have established the bad faith in the performance of the rights and obligations of the person. Therefore, only when the employee has symptoms of a contagious disease and is instructed to appear before a health authority for assessment of working capacity, but the person has not complied with the orders of the employer, there is reason to apply the provision of Art. 199, para. 3 of the Labor Code, according to which during the period of removal, the employee does not receive remuneration.

Nenko SALCHEV, Head of the Labor Law and Working Conditions Department in the Labor Law, Social Security and Working Conditions Directorate at the MLSP