Work during COVID-19. Practical legal advice

27.10.2021

WORK DURING COVID-19. PRACTICAL LEGAL ADVICE

See practical advice on the most common questions about working during COVID-19

 

  1. WHEN DO I NEED A GREEN CERTIFICATE FOR WORK?

According to the order Order № RD-01-856/19.10.2021 of the Minister of Health, the employers in the medical establishments for hospital care, the complex oncology centers, the dialysis centers, the hospices and the homes for elderly people organize the work process, admitting to work only employees with valid documents for vaccination, illness or examination within the meaning of Order № RD-01-733 of 27.08.2021 of the Minister of Health.

According to the same order, the control over the implementation of the introduced anti-epidemic measures is performed by inspectors/employees with valid documents for vaccination, disease or examination within the meaning of Order № RD-01-733 of 27.08.2021 of the Minister of Health.

Therefore, you work in:

  • in medical institutions for hospital care
  • complex oncology centers
  • dialysis centers
  • hospices and homes for the elderly
  • or you are an inspector/employee who monitors the implementation of the introduced anti-epidemic measures,

you will be allowed to work only with valid documents for vaccination, illness or examination within the meaning of Order № RD-01-733 of 27.08.2021 of the Minister of Health.

 

  1. CAN MY EMPLOYER OBLIGATE ME TO VACCINATE?

As everyone knows, vaccination against coronavirus (or against any other disease) is voluntary and it is everyone's right to make a personal choice. Personal choice can be dictated by any reason - health, religious, family, professional and any other reasons that are objective or subjective and no one has the right to influence by putting pressure on them.

The right to work is regulated by a number of international, European and national laws, and this right is absolutely nowhere bound by the decision of the citizens and the actions taken by them for vaccination or not.

 

  1. EMPLOYER PURCHASES COVID-19 COMBATING EQUIPMENT

The employer has no legal right and should not make deductions from wages for such purposes. The imposition of such "deductions" is a gross violation of labor law.

In the Health and Safety at Work Act (OHS) the legislator has regulated the general obligations of the employer regarding the provision of health and safety at work and they are:

  • To ensure healthy and safe working conditions in sites, productions, processes, activities, workplaces and work equipment with the design, construction (reconstruction, modernization) and their commissioning;
  • To submit an annual declaration to the territorial directorate "Labor Inspection" at the address of registration of the enterprise by April 30 of the following year;
  • To provide its employees with medical care from the occupational medicine service;
  • To establish a committee or group on working conditions in the enterprise or organization and in their structural units
  • To organize initial and annual training of the members of the committees and groups on working conditions;
  • To provide each employee with appropriate training in health and safety at work;
  • To assess the risk to the health and safety of employees;

All costs associated with ensuring healthy and safe working conditions are borne by the employer.

The employee has the right to refuse the performance or to suspend the work when there is a serious and immediate danger to his life/health, for which he notifies his direct supervisor immediately.

 

  1. WE ARE RIGHT TO LEAVE FOR COVID-19

When due to a declared state of emergency or declared an 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 terminated, the employer has the right to provide paid annual leave to the employee; without his consent, including of an employee who has not acquired 4 months of work experience.

As can be seen from the provisions of the law, the employer has the right to provide paid annual leave to the employee without his consent, including an employee who has not acquired 4 months of service. This right can be exercised under the following objective prerequisites:

- declared state of emergency;

- declared emergency epidemic situation;

- order of the employer for termination of the work of the enterprise, of a part of the enterprise or of individual workers and employees;

- an order of a state body for termination of the work of the enterprise, of a part of the enterprise or of individual workers and employees.

The law also stipulates that the employer is obliged to allow the use of paid annual leave or unpaid leave in case of a state of emergency or a state of emergency epidemic 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. an employee who is a single father or adoptive parent of a child up to 12 years of age or of a child with a disability, regardless of his age;
  4. an employee who has not reached the age of 18;
  5. an employee with permanently reduced working capacity of 50 and over 50 per cent;
  6. employed worker or employee;
  7. an employee suffering from a disease, determined in an ordinance of the Minister of Health.

The legislator also stipulates that the time during which this leave is used is recognized as length of service.

Please 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.

 

  1. WE CANNOT BE DISMISSED IF WE HAVE COVID-19

The law specifies that the employer may not serve a dismissal order at a time when an employee has started using his authorized sick leave. However, the protection of the employee is not applicable in cases where, even if he has been on authorized leave according to the sick leave issued to him, the employee has appeared at his workplace, has not presented the issued sick leave and has not notified the employer that is on duly authorized sick leave.

The grounds in the presence of which the employer terminates the employment contract of the employee with notice are regulated in the Labor Code. The right of the employer to terminate the employment contract with notice means that he owes notice to the employee.

There are cases in which the employer cannot give notice to the employee - during the use of leave, regardless of the type of leave (paid annual, unpaid, due to temporary incapacity for work, etc.) or in other cases, depending on from the status of the employee (mother of a child up to 3 years of age, employed, etc.), without prior permission of the labor inspectorate. In these cases, dismissal protection under the Labor Code applies.

 

  1. WHAT SHOULD WE DO IF WE INFECT WITH COVID-19 AT WORK?

If you are infected with COVID-19, you must immediately notify your employer of your incapacity for work and provide a sick note for the expected duration of the illness. To reduce the spread of the virus, it would be good to inform not only the employer but also your colleagues about the infection.

If you have been in contact with an infected person, find out as soon as possible whether you should be quarantined. If you need to be absent from work due to a suspicion of infection with COVID-19, you must again immediately notify your employer and provide him with a certificate of incapacity for work.

 

  1. WHEN ARE WE THE "CONTACT PERSONS" OF OUR COLLEAGUES WITH COVID-19?

In order to determine which of the colleagues are close contacts of an employee with COVID-19, we can borrow the definition, according to the current definition of the Ministry of Health. From it we can conclude that a close contact colleague at work is defined as one who:

  1. works in one room with a worker or employee diagnosed with COVID-19;
  • had direct physical contact with his colleague with COVID-19 (eg handshake);
  • has made direct unprotected contact with infectious secretions of a colleague with COVID-19 (eg when spraying when sneezing, touching handkerchiefs used by the employee with bare hands);
  • has been in direct (face-to-face) contact with a colleague with COVID-19 at a distance of up to 2 meters and duration over 15 minutes;
  • has been in a closed room (eg classroom, office, meeting room, etc.) with an employee with COVID-19 for 15 minutes or more and at a distance of at least 2 meters;
  • has provided direct medical and other similar care for an employee with COVID-19 without the recommended personal protective equipment or with possibly violated integrity of personal protective equipment;
  • has traveled in an airplane close to a person with COVID-19 (up to two seats in all directions) who is a travel companion or caregiver, crew members serving the sector where the patient is sitting (if the severity of symptoms in the patient or his movement indicates greater exposure for close contact may be identified and other or all passengers on the aircraft).

When determining the close contacts of a confirmed case of COVID-19 at our workplace, every person who made contact within 48 hours before and up to 14 days after the onset of symptoms in the patient should be considered. If the confirmed case is asymptomatic, contact is any person who has been in contact with the case within 48 hours before up to 14 days after taking the sample that led to the laboratory confirmation.

 

  1. ARE HOSPITAL DAYS RECOGNIZED FOR WORK EXPERIENCE?

The Labor Code provides for cases in which, in the presence of an employment relationship for a certain period of time during which the employee has not worked, it is recognized as length of service.

The length of service during which the employee has used unpaid leave for temporary incapacity for work (sick leave) is also recognized as length of service.

  1. The paid leave used, regardless of their grounds and the manner of their payment;

We remind you that the employee has the right to leave in case of temporary incapacity for work due to general illness or occupational disease, occupational accident, for sanatorium treatment and in case of urgent medical examination, quarantine, dismissal by prescription of health authorities, care of the sick or to a quarantined family member, urgent accompaniment of a sick family member for a medical examination or treatment, as well as for the care of a healthy child returned from a childcare facility due to quarantine in the facility or the child

  1. Used unpaid leave for temporary incapacity for work, for pregnancy and childbirth and for adoption of a child up to 5 years of age

 

  1. COMPENSATION OF A WORKER IN THE EVENT OF DEATH

The Labor Code stipulates that the employment contract is terminated without any of the parties having to give notice of the death of the employee. In the event that the person at the time of termination of the employment contract on the specified grounds has acquired the right to a pension for length of service and age, it is provided that upon termination of employment after the employee has acquired the right to a pension for length of service and age, regardless of the grounds for termination, he is entitled to compensation from the employer in the amount of his gross salary for a period of 2 months, and if he has worked for the same employer in the last 10 years of his service - to compensation in the amount of gross his salary for a period of 6 months.

As the compensation is due by the employer, upon termination of the employment contract upon death of the employee, the employer owes the compensation for the acquired right to retirement to the heirs of the employee after presentation by the heirs of a certificate of heirs.

According to the law, in case of death of the employee before the use of paid annual leave, his heirs are paid compensation for unused paid annual leave in proportion to the paid annual leave due to him until the day of death.