COVID-19 and Employers: Didn’t Like Work From Home? Better start…

How does the Decree on Organization of Work of Employers During the State of Emergency regulate the labor relations in the Republic of Serbia?

25
Mar 2020

Contact: Jelena Jeremić

The Coronavirus disease has taken over all areas of life, and as most of these areas are legally regulated, fear of the unknown has spread within employers as well. The Decree on Organization of work of Employers during the State of Emergency, issued by the Government of the Republic of Serbia, regulates questions that have already been asked by employers when a state of emergency was declared. The situation is easier for employers now because they have received at least some rules of the game. This Decree provides a special manner and organization of work of employers in the territory of the Republic of Serbia during the state of emergency.

Restriction of Mobility Rights

When the survival of the state or its citizens is threatened by a public danger, the competent authority shall declare a state of emergency, in accordance with the Constitution of the Republic of Serbia, and may also prescribe the measures which shall provide for derogation from human and minority rights guaranteed by the Constitution, and in the case of Coronavirus disease – from the freedom of movement.

The pandemic of the Coronavirus in the Republic of Serbia, as well as in other countries, has caused the need to introduce special state measures that restrict the movement of the population, and therefore employees, which at the same time creates the obligation for employers to organize work differently: by introducing part-time work, redistribution or work from home, or for employers whose none of the foregoing is feasible, to suspend it for the duration of the measures.

According to the Decree on Organization of work of Employers during the State of Emergency, the employer is obliged to enable employees to perform work outside the premises of the employer (telecommuting and work from home), at all workplaces where such work can be organized in accordance with the general act and the employment contract.

If the general act and the employment contract do not stipulate the manner of work of employees outside the premises of the employer, the employer may allow the employee to perform activities outside the premises of the employer by Decision, if the organizational conditions allow it.

The employer Decision must include the duration of employees’ working hours, as well as the way the employer supervises the work of employees. The Decision also prescribes a special obligation of the employer – to keep records of employees who work outside the premises of the employer.

It is up to employers whether their focus will be on achieving goals and results or on the supervision of employees working from home.

If you are an employer, after the previous provision you have certainly wondered the following:

It is a very important question; however, the Decree does not regulate it. But even if the Decree had regulated the specific question, the provisions of the Labor Law would have been applied in that situation, because a Decree cannot override a Law.

The Ministry of Labor issued a statement that during the state of emergency, employees are not entitled to reimbursement of expenses caused by work from home, however, our position is opposite, and here’s why:

The Labor Law stipulates that in the case of an employment contract for performing the work outside the premises of the employer, the contract must, among other things, regulate the use of work equipment of an employee and the reimbursement of costs for its use, as well as the reimbursement of other labor costs and the manner of their determination. With that in mind, our answer is YES, the employer is obliged to reimburse the expenses.

On the other hand, the employer will not be obliged to cover the costs of transportation of the employees from and to workplace, since such costs will not be incurred.

In most cases, the costs of working from home, which the employer must reimburse now and the costs of transportation, which the employee now does not have, will be equal, that is – the costs of the employer will remain the same.

Another important issue is not specifically regulated, and we think the same question is being asked by countless employers:

The Labor Law explicitly stipulates that the employer may contract the activities outside his premises which are not dangerous or harmful to the health of the employee and other persons and do not endanger the environment.

Applying the provisions of the Law on Safety and Health at Work and the obligation of the employer to provide the employee, including the employee who works from home, with working conditions and organizes work for the sake of safety and protection of life and health at work, our answer is NO, an employee has no right to refuse to work from home in this situation.

What If It Is Not Possible to Organize Work Outside the Premises of the Employer?

An employer whose nature of the activity is such that it is not possible to organize work outside his premises, shall harmonize his business with the conditions of emergency in the following way:

  • to arrange shift work, if it is possible and does not require additional resources so that as few employees and all other workers as possible can work in one room at the same time;
  • to enable all business meetings to be held electronically or by other appropriate means (video link, video call, etc.);
  • postpone official travel in the country and abroad, in accordance with the decision of the competent authority on the proscription and temporary restriction of entry and movement.

We couldn’t help but wonder, is it possible to think of a state of emergency as an inevitable form of team building since everyone must work as a team in order to adapt to the new way of doing business of the employer?

The Decree stipulates that in order to ensure the protection and health of employees, other workers and parties, the employer is obliged to provide all general, special and extraordinary measures related to the hygienic safety of facilities and persons in accordance with the Law on Protection of Population from Infectious Diseases. The Decree also provides the obligation for employers to acquire enough quantities of protective equipment for employees who are in direct contact with clients or share a workspace with multiple persons, in accordance with special regulations. Since there is a shortage of safety equipment in the pharmacies, in addition to being a legal obligation, it will also be a challenge for employers to obtain protective equipment.

Does the Decree Regulate All the Issues at Stake?

The Decree does not resolve one more very contentious issue – the issue of the status of employees who, due to the nature of their work, cannot work from home and have minor children in school or even kindergarten.

According to the Recommendation on the organization of work in public administrations and state institutions issued under this Decree by the competent Ministry, which should also be applied to employers in the private sector, if a family has a child under the age of 12, one parent should be allowed to work from home.

If the work process of the employer is such that work from home is impossible, it is necessary to organize work in shifts so that the work schedule of the employed parent does not coincide with the work schedule of the other parent who also has to work in the premises of the employer.

As we all wait for the further regulation of the disputed issues, we conclude that at the state of emergency and the way it reflects on the economy, it is not easy to be an employer, nor an employee. However, the Decree only makes it easier because it eliminates doubt and creates at least some level of legal certainty.

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