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Impact of the Government COVID Measures on Employment Relations 

by KSB Covid-19 Task Force

Published: April, 2020

Submission: April, 2020

 



The current situation has a considerable impact on employment relations. What should employers know in this regard to be best equipped for this challenging situation?


Minimizing labour costs


The issue of emergency measures (in particular banning visits to certain types of institutions, banning the retail sale of goods and services, banning the operation of games and casinos, banning the operation of catering establishments in shopping malls or banning the gathering and organization of events over 30 persons) can have potential impacts for all entrepreneurs. This situation can be defined as so-called partial unemployment within the meaning of Section 209 of the Labour Code. The difference between partial unemployment and an obstacle on the part of the employer under section 208 of the Labour Code is the fact that the employer cannot allocate work to employees within a week's standard working hours due to temporary restrictions on sales and / or demand.


It is advisable to make use of the possibility of applying for the so-called 'kurzarbeit'. This is a contribution that the Labour Office may pay to employers at the time of partial unemployment, provided that the conditions under Section 115 of Act No. 435/2004 Coll., On Employment, as amended (the “Employment Act”) are met. In particular, the following conditions shall apply:


  • the employer may not assign work of at least 20% of the fixed weekly working time;
  • employees are already paid wage compensation of 70% of average earnings;
  • the employer undertakes not to terminate the employment relationship with the employee during the period of drawing the contribution pursuant to Section 52 a) to c) of the Labour Code.

The allowance will be paid on the basis of an agreement between the employment office and the employer for a maximum of half a year equal to 20% of the employee's average earnings. Government consent to this agreement is also required.


Quarantine


The employee is obliged to inform the employer that he or she has been ordered to self quarantine.


Pursuant to Government Resolution No. 209 of 13 March 2020, all citizens of the Czech Republic and foreigners with permanent or temporary residence in the Czech Republic for more than 90 days or if they are employed in the Czech Republic and have returned fromstay in the risk areasfrom the time of effect of the government resolution, are obliged for the period from 13 March 2020 from 12:00 to 11 April 2020 (or until further notice), to notify this fact immediately by remote access to their general practitioner, who isobliged to decide on a quarantine period of 14 days, unless they are exempted by the Minister of the Interior.


Persons shall be subject to the same obligation in the preceding paragraph when returning from non-risk areas in the event of any symptoms of influenza. The risk areas are identified by the Minister of Health by a notice published on the website of the Ministry of Health. As of 14 March 2020, the countries concerned are: China, South Korea, Iran, Italy, Spain, Austria, Germany, Switzerland, Sweden, the Netherlands, Belgium, the United Kingdom, Norway, Denmark and France.


The above-mentioned Government Resolution No. 209 extended the obligation, which, with effect from 7 March 2020, was imposed by an emergency measure of the Minister of Health. All persons with a permanent or temporary stay in the Czech Republic over 90 days or employed in the Czech Republic who have returned from a stay in the Republic of Italy to the Czech Republic since 7 March 2020 are obliged to report this fact immediately after their return to a general practitioner who is required to take a decision on a quarantine period of 14 days, unless they are covered by the exemption. However, these persons also have a reporting obligation in case of any symptoms of influenza.


Finally, in accordance with the emergency measure of the Ministry of Health of 8.3.2020 effective from 8.3.2020 until further notice, general practitioners are obliged  to decide on a quarantine period of 14 days for all persons who have been in contact with a laboratory confirmed coronavirus infection. Failure to comply with the above information obligations may be penalized up to CZK 2,000,000.


If the competent authority (general practitioner or other attending physician) decides on the employee's quarantine, the employee is entitled to compensation of wages or salaries in the same way as in the case of temporary incapacity for work pursuant to Sections 191 and 192 of the Labour Code. In the case of a quarantine decision, the employer is obliged to excuse the employee's absence from work during the period of quarantine ordered under the Public Health Protection Act. The employee is obliged to submit to the employer a so-called notification of the quarantine order.


If quarantine is ordered abroad, the employer is obliged, as in the case of quarantine in the Czech Republic, to provide temporary compensation for wages or salaries due to incapacity for work pursuant to Sections 191 and 192 of the Labour Code. If an employee takes a vacation abroad, he / she does not virtually interrupt the employee's vacation in accordance with Section 219 (1) of the Labour Code by ordering quarantine in another state. According to ECJ case law, wage compensation should be paid at the place where the employee is being treated, but another agreement is possible.


More detailed information on preventive measures implemented by individual states was prepared by the Ministry of Foreign Affairs and published on its website. Current information on the spread of coronavirus in the world is prepared by the World Health Organization.


Preventive measures


Provided that the employee does not show signs of an infectious disease, it is appropriate, with regard to the work to be performed, that the employer, as a precautionary measure, take some of the measures enabling the employer to implement the Labour Code, being:


  • the employer can agree with the employee that the employee shall work outside the employer's workplace (e.g. home office). This is an agreement between the employer and the employee to temporarilychange the place of work. In addition to the above, we add that when so changing the place of work, it is not possible for an employee to waive the right to reimbursement of home work costs (therefore we recommend negotiating a flat-rate amount to cover these costs) and at the same time the employee should be trained in occupational health and safety (ideally a new workplace shall be inspected by a specialist in the field of risk prevention).
  • The employer is also entitled to make an appropriatereassignment within the shift scheduleand to familiarize employees with the shift reassignment in a timely manner. Early notice means 14 calendar days in advance, unless otherwise agreed between the employee and the employer. From a practical point of view, this may involve establishing an appropriate mechanism to prevent strategically important employees from being infected with coronavirus.
  • If, as a precautionary measure, the employer has decided that the employee remain in a home environment where he / she does not work (this is not an agreement to change the place of work), this is nota situation of incapacityor quarantine ordered by the attending physicianon the employer's side. In such a case, the employee is entitled to compensation of wages or salaries equal to the average earnings according to section 208 of the Labour Code. Some employers see voluntary quarantine as a mutual benefit and offer it to employees on condition that they are not paid 100% wage compensation. This amendment has not yet been tried in court, but some labour inspectorates accept it.
  • The employer may also agree with the employee on the taking of holiday leave. In general, the employer is obliged to notify the employee of the specified period of holiday leave at least 14 days in advance, unless the employer agrees with the employee for a shorter period within the meaning of Section 217 (1) of the Labour Code. Failure to comply with the agreement on a shortened deadline for notification is a violation, and the Labour Inspection Authority may impose a fine of up to CZK 200,000 for committing it.

Coronavirus illness on a business trip


Coronavirus disease does not meet the typical definition of an accident at work within the meaning of Section 271k of the Labour Code. However, judicial practice has concluded that, for example, a disease caused by compulsory vaccination, ordered by a certain group of employees in connection with their work, was an occupational accident for which the employer was responsible. If the employer has ordered a business trip to a country at risk of being infected with coronavirus, a certain parallel with the exposure of the employee to the risk of illness for other causes initiated by the employer (as in the referenced case of vaccination or exposure to occupational disease) cannot be totally excluded.


The employer's liability for injury to employees must be viewed in a broader context, also in terms of the legal requirements imposed on employers to ensure the safety and health of employees at work, taking into account the risks to their life and health, and the obligation to create a safe and non-threatening working environment and working conditions by appropriate organization of occupational health and safety and by taking measures to prevent risks (see Sections 101 and 102 of the Labour Code). Thus, the general legislation provides that everyone is obliged to prevent injury (including to health). So far, it was at the discretion of employers whether to send employees on a business trip abroad to countries with a higher risk of illness, effective from 16 March 2020, travel of Czech citizens and foreigners with permanent or temporary residence over 90 days from the Czech Republic is prohibited, unless there is some generalized or individual exemption granted from this measure. Exceptions are granted by the Minister of the Interior; general xemptions from the ban on travel are published on the website of the Ministry of Interior.


Health check of employees


Considering the potential risk of commuting to the place of work with coronavirus infection, as the incubation period and the individual symptoms that are inconsistent with regard to the infected subject, employers often face the question of whether they are entitled to inspect the health of employees (e.g. temperature measurement) on arrival and departure from the place of work and record them. In terms of labour legislation, employers are not entitled to check the health status of employees and employees are not obliged to submit to this check. In this regard, we assume, in particular, that there is an explicit legal provision for determining the employee's ability to work with regard to the influence of alcohol, which allows the employer to check the employee (Section 106 (4) (i) of the Labour Code). However, the obligation to undergo temperature measurement is not regulated. Similarly, the question of calibrating the measuring instrument (such as alcohol testers) arises, and the question of proving that the employee indeed had an elevated temperature and was temporarily incapable of work (incapacitated work). Although the current situation is truly extraordinary, we consider enforcing control and relying on the findings to be risky.


On the contrary, we consider the risk-free option if the employee would have to undergo an extra occupational medical examination pursuant to Section 12 of Decree No. 79/2013 Coll., which will be requested by the employer pursuant to Section 12 (3) of this decree. A prerequisite for this procedure is also an appropriate agreement with the occupational health care provider, which may be more difficult under the given conditions. In this situation, the employee is obliged to undergo such occupational medical examination (Section 106 (4) (b) of the Labour Code). The result of the occupational medical examination will provide a relevant basis for deciding whether the employee is fit for work or whether he or she is temporarily incapable of work and thus also the basis for payment of (reduced) wage compensation during the period of temporary incapacity for work.


Processing personal data of employees


If, in spite of the above, employers collect information on the health of employees, provided that this information is used solely for the purpose of protecting health and preventing the further spread of the disease, it could be the legal basis for such processing of personal data on the fulfilment of legal obligations of the company pursuant to Art. 6 (1)(c) of the GDPR consisting


 



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