If You Believe You Are Ready to Have Your Employees Return to the Workplace, Think Twice

After lifting the state of emergency in the Republic of Serbia, some employers have decided to take their employees back to their offices, while others have continued to work from home. From a legal standpoint, what does each of such decisions bring to the table?

20
May 2020

The same day the state of emergency was lifted, the Decree, which used to provide at least some answers about the changed circumstances to the employers, ceased to be valid. Now, as employers are on precarious ground, they should know their obligations – but also know the rights of the employees.

The Decree provided for the obligation of employers to enable their employees to work from home in all workplaces where it is possible to organize work in such a manner. After the cessation of the Decree, this obligation ceased to be valid, and left employers in doubt – should they bring their employees back to their offices, or is it still best to continue with work from home?

IF THE EMPLOYEES ARE RETURNING TO THEIR WORK PREMISES

The Decree also provided for an easier way of sending employees to work from home – by issuing individual decisions of the employer for each employee, without the need to conclude an annex to the employment agreement, as required by the Labor Law. By filling one simple form, referring to a specific Decree, employers were in a position to preserve the health of their employees, continue to operate their business and respect the legal norms.

Now, without the Decree, the general provisions of the Labor Law and the obligatory adoption of the annex to the employment agreement are mandatory, pursuant to the transfer to another workplace with the same employer. The Labor Law also provides for a mandatory notice in addition to the annex to the employment agreement with the reasons for changing the agreement, the deadline for the employee to declare, and the legal consequences in case of not signing the annex to the agreement.

The situation is aggravated by the fact that the Decision under the Decree is a unilateral legal act of the employer, while the annex requires the consent of the will of both the employer and the employee.

IF THE EMPLOYEES HAVE CONTINUED TO WORK FROM HOME

We remind you to always remember the general obligations you have under the Occupational Health and Safety Law:

You are obliged to provide your employees with work at the workplace and in the work environment in which safety and health measures at work have been implemented. Otherwise, the employees may refuse to work without any consequences to their work engagement.

But the current epidemic carries additional responsibilities and obligations. The instructions provided by the Crisis Staff, related to the organization of work, work activities, and work positions given in order to ensure the safety of employees and service users, customers, and other persons entering the business premises, can be very useful.

MANDATORY OBLIGATIONS FOR ALL EMPLOYERS

As an employer, you should provide:

  • the physical distance between employees, i.e., organization of work activities and workspace in such a way as to avoid direct contact between persons whenever the nature of the job allows;
  • disinfection of premises, floors, furniture, machines, tools, and devices for work after the service is provided to each user;
  • replacement of used paper, plastic, or cloth accessories;
  • mandatory use of personal protective equipment, i.e., masks and gloves;
  • mandatory disinfection of feet and hands of all persons entering the business premises;
  • frequent ventilation of all rooms;
  • regular disinfection of all common and hygienic rooms;
  • in case of suspicion that a person has symptoms of the infectious disease, the responsible person of the business entity is obliged to remove that person from the work premises without delay, with a recommendation to immediately contact the competent health center – COVID clinic, and
  • all other measures that can be implemented without disturbing the work process, i.e. production, while ensuring the safety of all persons.

Also, know that the Decision on the Proclamation of COVID-19 disease and its provisions, by which all citizens are obliged to respect the Law on Protection of the Population from Infectious Diseases, the Law on Health Care, the Law on Public Health, as well as other measures required by the nature of the disease, are still in force.

However, that is not the end. In the next period, it is expected that a new Regulation on preventive measures for safe and healthy work will be adopted, which should remove legal uncertainty for employers, but also impose new obligations.
You can read more about this forthcoming regulation in the text below.

OBLIGATIONS TOWARD THE EMPLOYERS FROM SPECIFIC INDUSTRIES

In addition to the instructions given to all the employers, some employers also received more precise instructions.

Employers who sell goods or provide services in shopping malls and similar facilities in which activities are performed in the field of retail trade, and which includes the sale of goods and services in shops that are entered from a larger enclosed space, are obliged to, concerning employees and service users, apply these preventive measures:

  • organize a work process that provides a limited number of people on the premises;
  • maintain physical distance or distance between two persons of at least two meters;
  • provide services using glass, plastic or similar barriers;
  • mandatory disinfection of rooms and floors, furniture, machines, tools and devices for work after the service to each user;
  • mandatory use of protective equipment, i.e. masks by employees and users of services, and
  • obligation to adopt a special plan for the implementation of measures, which is an integral part of the act on risk assessment, which is adopted in accordance with the law and regulations in the field of occupational health and safety.

If you fall under the category of employers who provide services of care, maintenance, and beautification of face and body, where the nature of the activity of providing the service is such that requires close contact between the provider and the user of the service, as well as the users of the service with each other, you must:

  • apply all preventive measures related to the prevention of the spread of the COVID-19 infectious disease caused by the SARS-CoV-2, which ensures the safety of employees and the safety of service users, and
  • adopt a special plan for the implementation of measures in that sense, as an integral part of the act on a risk assessment which is adopted in accordance with the Law and regulations in the field of occupational health and safety.

Special obligations are also provided for the employers at fitness clubs and gyms:

  • The rules of conduct for employees and users of fitness clubs, as well as the Rulebook on the behavior of employees and users of fitness clubs on the safe use of equipment and props of the Association for Recreation and Fitness, must be prominently displayed.
  • A disinfectant barrier must be placed at the entrance to the club.
  • At the beginning and end of the working day, ventilate all rooms and disinfect all work surfaces, equipment, devices, and other exercise equipment, as well as the flooring. During the working day, you should ventilate all rooms as often as possible.
  • At each entry, employees or users must disinfect hands with a solution based on 70% alcohol.
  • All employees must wear personal protective equipment, i.e., protective masks and gloves during all working hours.
  • Service users must use their own towels and other personal hygiene items.
  • Service users must make an appointment in advance to use the club’s services by phone, mobile phone, or e-mail.
  • The use of common, auxiliary rooms, such as coffee kitchens, locker rooms, showers, etc., is possible only if there is a possibility to disinfect the room after each use.
  • The arrangement of equipment, devices, and other equipment for training, i.e. the organization of training must be such that, at any time, there is a physical distance between the trainees of at least two meters (10 square meters per trainee).
  • Equipment, devices, and exercise equipment must be disinfected after each use.
  • In case of suspicion that any of the employees have symptoms of infectious disease COVID-19 (fever and one of the signs and symptoms – cough, shortness of breath and difficulty breathing), the responsible person of the club is obliged to remove the employee from the club premises without delay, with a recommendation to immediately contact the competent health center.
  • In case any of the service users have symptoms of COVID-19 infectious disease, employees and/or the responsible person of the club are obliged to warn the user and ask them to leave the club premises, with a recommendation to immediately contact the competent health center.

NEW REGULATION ON PREVENTIVE MEASURES FOR SAFE AND HEALTHY WORK

A special Regulation is currently being drafted with the aim to provide safety to all the employers, i.e., to provide definite legal rules that will be applied in the current pandemic caused by the coronavirus.

Many provisions of the new Regulation on Preventive Measures for Safe and Healthy Work to Prevent and Spread the Infectious Disease Covid-19 caused by the SARS-COV-2 Virus have been the subject of criticism by the professional public, which is probably the reason why the Regulation has not been adopted yet.

We present to you some problematic issues of the future Regulation:

1.  THE OBLIGATION TO MEASURE THE BODY TEMPERATURE OF BOTH EMPLOYEES AND VISITORS, I.E., CUSTOMERS WHEN ENTERING THE EMPLOYER’S PREMISES.

The problem: Bearing in mind that this Regulation will be binding on all employers in the Republic of Serbia, it is easy to imagine people waiting in long lines in front of the employers’ premises, being in contact with each other, exposing themselves to a higher risk of infection, but also slowing down the employer’s business.

*An additional problem: The protection of personal data, as health information is a special category of personal data according to the Law, the processing of which is prohibited except for exceptional cases.

2. THE OBLIGATION TO SHUT DOWN AIR CONDITIONERS OR AT LEAST REDUCE THE LEVEL OF COOLING THE PREMISES.

The problem: A lot of office buildings do not have natural ventilation.

*An additional problem: The summer months are approaching, and the air conditioner will be necessary for the normal business process.

3. THE BAN ON ORDERING FOOD BY EMPLOYEES AND DELIVERING IT TO THE EMPLOYER’S PREMISES.

The problem: What about those employees who do not have restaurants or shops nearby?

*An additional problem: By going outside for the lunch break, employees will meet each other and other people and thus expose themselves to a higher risk of infection yet again.

Considering these issues, as well as other problematic provisions of the future Regulation, we hope the Regulation will be amended and adapted to the situation before entering into force.

However, given that certain time has passed since the state of emergency was lifted, it is reasonable to ask whether the new Regulation will be adopted at all, or are the general rules sufficient to ensure both the legal and health security of employers, employees, and clients?

Until we get an answer to this question, you should act according to general rules, but also according to instructions and directions, even though they may not have a hint of obligation, because the law certainly provides penalties that await you just around the corner, if you decide not to follow the rules.

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