Status of the employees of an employer whose business activity is temporarily suspended due to the Covid-19 virus epidemic
When it comes to resolving the employment status of employees of an employer whose business activity is temporarily suspended due to a potential epidemic, Article 117 of the Labor Law ("Official Gazette of the RS", No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 - US decision, 113/2017 and 95/2018 - authentic interpretation) is to be applied, which stipulates that an employee is entitled to a remuneration in the amount stipulated by a general act and the employment contract during the termination of work, which was ordered by the competent state body or the competent body of the employer for failure to provide safety and protection of life and health at work, which is a condition for further work without endangering the life and health of employees and other persons, and in other cases , in accordance with the law.
The General Act of the employer and the Employment Contract may also determine other cases in which an employee is entitled to wage compensation.
The employer does not have the right to, during the suspension of work, which may occur without fault of the employee, instruct the employee to use unpaid leave, within the meaning of Article 78 of the Labor Law. Namely, in accordance with this provision, an employer may grant an employee leave without pay (unpaid leave), and during unpaid leave the employee is entitled to work rights and obligations, if for certain rights and obligations the law, general act and employment contract do not specify otherwise.
The cases for which the employer may grant unpaid leave, as well as the length of unpaid leave, are not determined by the Labor Law. The Labor Law also does not direct this issue to be regulated by a general act or employment contract, which means that the employer has the freedom to evaluate whether in a particular case he may authorize an employee to use unpaid leave, having in mind the reasons stated in the employee's request, as well as that his absence will not interfere with the organization and work process.
However, the purpose of unpaid leave which the legislature had in mind in prescribing this provision is first and foremost the family and other private and personal obligations of an employee requiring him to be temporarily absent from work, and this institute could not be applied in the case of potential epidemic.
The institute of unpaid leave in this case cannot be applied in particular because the Labor Law also stipulates, in the provision of Article 116, when an employee is entitled to a salary remuneration of at least 60% of the average salary in the previous 12 months, provided that this remuneration cannot be less than minimum wages determined in accordance with this Law, during the termination of work, ie reduction of the volume of work of the employer, which occurred without the fault of the employee, up to 45 working days in a calendar year, and exceptionally, in the case of termination of work, or reduction of the volume of work, which requires longer leave, with the employer being able, with the prior consent of the Minister, to send the employees for unpaid leave for more than 45 days, with payment of the same wage compensation.
Therefore, the law prescribes possible ways of resolving the status of employees when an employer suspends his business activity without the fault of employees, and in this sense unpaid leave regulated by a special article has a completely different purpose.
However, it is certainly appropriate in the specific case to apply the provision of Article 117 of the Labor Law and in the case of potential danger to the safety and protection of life and health of the employee refer the employee to "forced leave" or temporary leave from work, but with payment of salary in the amount determined by a general act and a contract of employment. The Labor Law directs that the amount of compensation be prescribed by a general act, which means that the minimum amount of this benefit is not guaranteed, but the employer has the discretion to determine it himself. In addition, the application of this provision does not necessarily require that the termination of work was ordered by the competent state authority, but this decision can be made by the competent authority of the employer, as it is not able to provide protection of the life and health of employees at work, which is a condition to continue his activity without endangering the life and health of the employees.
Additionally, in such specific circumstances, the employer may direct employees to work from home, of course, when the nature of the work and the organization of work with the employer allow it.
Namely, work from home, in accordance with the provision of Article 42 of the Labor Law, means work performed by an employee for the employer in the premises in which he lives, at home or in an apartment. To work from home, it is necessary for the employee to have certain means of work that are provided, installed and maintained by the employer in the employee's place of life. Other working conditions for carrying out work from home are contracted by the employment contract, or in the specific case by annex to the employment contract concluded by the employer with the employee, although according to the point of the view of the labor inspection, work from home in the case of such extraordinary circumstances may be ordered to employees and only on the basis of decisions of the employer without concluding an annex to the employment contract.
When it comes to employee health care, we point out that the employee is primarily entitled to adequate health care, protection of personal integrity, dignity and other rights in the event of illness, reduction or loss of working ability and age, material security during temporary unemployment, and the right to other forms of protection, in accordance with the law and the general act, ie the employment contract, in accordance with the provision of Article 12, paragraph 1 of the Labor Law.
Social care for the health of employees at the employer level is prescribed in the Law on Health Care ("Official Gazette of RS", No. 25/2019 - hereinafter: the Law). Namely, the Law generally establishes the obligation of the employer to organize and provide from his own funds the health protection of employees in order to create conditions for health responsible behavior and health protection in the workplace of the employee.
Namely, the provision of Article 14 of the Law stipulates that the employer organizes and provides from his own funds health protection of employees in order to create conditions for health responsible behavior and health protection in the workplace of the employee, which includes at least:
1) medical examinations for the purpose of determining the ability to work, at the order of the employer;
2) implementation of measures for prevention and early detection of occupational diseases, diseases related to work and prevention of injuries at work;
3) preventive examinations of the employee (previous, periodic, control and targeted examinations) depending on gender, age and working conditions, as well as the occurrence of occupational diseases, injuries at work and chronic diseases, in accordance with the law;
4) inspections of the employee, which are compulsorily conducted for the protection of the environment and the workplace, for the protection of the employee against infectious diseases in accordance with the regulations governing the protection of the population from infectious diseases, for the protection of consumers, that is, users and other mandatory health examinations, in accordance with the law ;
5) familiarizing employees with occupational health and safety education and training regarding specific conditions, as well as the use of personal and occupational safety equipment and collective occupational safety and health measures, in accordance with regulations governing safety and health at work;
6) provision of sanitary-technical and hygienic conditions (sanitary conditions) in facilities under sanitary supervision and other facilities in which the activity is of public interest, in accordance with the law governing sanitary supervision, as well as providing and implementing general measures for the protection of the population against infectious diseases, in accordance with the law governing the protection of the population against infectious diseases;
7) other preventive measures (recommended immunization, optional systematic examinations), in accordance with the general act of the employer;
8) monitoring of working conditions and safety at work, as well as risk assessment in the workplace, in order to improve working conditions and ergonomic measures, adapting work to the psychophysiological abilities of the employee;
9) monitoring of illness, injury, absence from work and mortality, in particular from occupational diseases, work-related diseases, injuries at work and other health damages that affect the temporary or permanent change of capacity, in accordance with the law;
10) participation in the organization of the work and rest regime of the employee, as well as in the assessment of new equipment and new technologies, from a health and ergonomic point of view;
11) implementation of measures to improve the health of the employee who is exposed to health risk during the work process, including the evaluation and referral of the employee in particularly difficult and risky jobs to health-preventive activities and rest;
12) providing first aid in the event of an occupational injury and providing conditions for emergency medical assistance, in accordance with the law.
Social care for the employer at the employer level includes both preliminary and periodic reviews of workers working in high-risk workplaces, in the manner and according to the procedure established by the regulations governing the field of safety and health at work.
In providing social health care at the employer level, the employer is obliged to provide employees with other measures of safety and health at work, in accordance with the regulations governing the field of safety and health at work.
Finally, in accordance with the provision of Article 16 of the Law, employees have the right to information that is necessary for preserving and improving health and acquiring healthy living habits, to information on the causes, occurrences, spread, ways of preventing and combating diseases and injuries from a major public health importance, as well as information on environmental and occupational factors that may affect health, in accordance with the law.
The employees have the right to be informed about the protection of their health in the event of an outbreak, major accident (danger of ionizing radiation, poisoning, etc.), as well as other crisis and emergency situations.
The competent health institution, other legal entity and private practice shall, without delay, provide true information on the outbreak of an epidemic and other crisis and emergency to the competent authorities of the local self-government unit, autonomous province and the Republic of Serbia, which shall immediately inform the public accordingly with the law.
In this case, the employer should take measures for the health care of the highest level for the employees and act in accordance with the aforementioned provisions of the Law, indicate to the employees what preventive measures should be taken in order to prevent the spread of the epidemic, to inform them further that in case of any symptoms, they may contact the relevant Ministry of Health or Public Health institutes and institutes in the territory of the municipality in which they reside and act in accordance with other above-mentioned obligations prescribed by law.