The impact of the coronavirus (COVID-19) is known to almost everyone, or we all have heard a lot about it lately. The aim of this article is not to contribute to the already tense situation. Instead it aims to prevent this spread in the workplace as well as preparing employers to make temporary changes in labour-law relations that coronavirus can bring. 

Prevention is essential. Given the nature of the coronavirus and the way it is transmitted, any employer - regardless of the size of its business - should actively contribute to minimise the risk formation (and further spread) of coronavirus in its workplace. In addition to endangering the health of employees, failures regarding prevention may lead to additional material cost on the part of employer.

The basic and easiest precautionary measure is to educate and inform the employees about the risks related to coronavirus. For example, an employer can:

• provide its employees with relevant information published by the Public Health Authority of the Slovak Republic or WHO;
• encourage its employees to increase hygiene in order to minimize the risk of infection (in the workplace – e.g. more frequent washing of hands with soap, sneezing into a handkerchief or sleeve, avoiding close contact with people who show signs of cold or flu; at home – proper boiling of meat or eggs, etc.);
• provide its employees with information on risk countries;
• challenge its employees to immediately seek the medical advice and stay at home in case of symptoms of illness (i.e. fever, cough, difficulty breathing, muscle pain, headache, fatigue);
• provide additional protective equipment for the protection of health, such as wearing of protective masks or respirators;
• inform its employees about inadmissibility of discrimination, etc.

Depending on the field and nature of your business, you can also consider other precautionary measures, such as:

• to reduce business trips abroad and replacing them with videoconferences;
• to consider possibilities of the “Home-office” and provide thereto necessary IT resources;
• to offer the affected employees a reimbursement of all or part of their wages – i.e. positively motivate them to stay at home in case of symptoms of respiratory illness (keep in mind that such offer may be abused and remember on a suitable control mechanism);
• impose vacation upon the employees;
• draw up a comprehensive contingency plan; etc.

When prevention fails. The situation may come even when the prevention measures are strictly regulated and respected (the situation in surrounding countries may be an example). If your employee will be infected, you will have to deal with (i) an individual employment relationship with that employee as well as (ii) relevant questions regarding other employees.

Employee in quarantine

In the case, that an employee is tested positive with coronavirus, he/she will be considered incapable of work and quarantined, then the existence of important personal obstacle on the part of this employee is indisputable. The affected employee must notify the employer of such obstacle without undue delay.

For the purposes of employment law obligations, such situation in practice does not differ from a standard “sick leave”. In the event of temporary incapability for work, the employee is entitled for a wage compensation from the employer in the amount:

•  25% of the daily assessment base during the first three days (unless a higher percentage is agreed in the collective agreement);
•  55% of the daily assessment base from the third day to tenth day (unless a higher percentage is agreed in the collective agreement).

(Note: The daily assessment base is calculated by relatively complicated specific statutory formula, but basically is almost the same as average wage of the employee with some limitations (e.g. in 2020 the maximal daily assessment base is 60.6083 EUR).)

If the incapability for work exceeds 10 days, the above-mentioned obligation of the employer to pay wage compensation ceases to exist and the responsibility for the employee is taken over by the Social Insurance Agency, which will pay him / her sickness benefits.

We can also expect a situation where the sick employee will be cured (or even never been ill) but will be (still) in quarantine ordered an issued by the Regional Public Health Authority (issued through his/her general practitioner). In such cases the procedure will be the same as above - as quarantine of healthy employee is specified in the law as important personal obstacle on the part of the employee on par with the sick leave.

Questions related to healthy employees who are not in quarantine

Employers may encounter several scenarios, the main ones being (i) the refusal of employees to come to work and to perform the work and (ii) the quarantine ordered by the Public Health Authority as precautionary measure.

Refusal of an employees to come to the work and to perform the work

It could happen that the employees would refuse to come to work and perform the work due to the threat of coronavirus (for example, in the media, the current situation of museum staff in Paris, Louvre).

One of the employer's basic duties is to create favourable working conditions and to secure occupational safety and health. The Slovak Labour Code provides several rights of the employee´s regarding violation of such duty by the employer.

If an employee refuses to work because of an imminent and serious threat to his life or health, the employer cannot treat this behaviour as a breach employee´s obligations under the employment contract.

It will always be crucial to determine the boundary when an imminent and serious threat to the life and health of an employee occurs. The prerequisites for setting such a threshold will also depend on the nature of your business (e.g. higher risk is when the employee comes into contact with the general public, the lower the risk will be in office work). The most likely scenario is a general quarantine ordered by the public health authorities, as described below. We don’t assume that the employees could come to a legally justified conclusion that there is imminent and serious threat to their life based on them reading the newspapers and lay interpretation of the thus gained knowledge on the everyday facts in their workplace. However, it cannot be entirely excluded either. Therefore, an open and straightforward communication between the employer and the employees is recommended.

If there is no immediate threat to the life or health of the employee, the employee is obliged to perform their work. If an employee did not come to work and otherwise justified his absence, this will result in a breach of the employee's basic duty - to be at the workplace at the beginning of working time, using working time for work and leaving it only after the end of working time.

Quarantine ordered by the Public Health Authority

The Public Health Authority or Regional Public Health Authority is legally authorized to impose several types of measures that may impact your business, for example:

• order hygienic cleaning and decontamination of terrain, buildings, materials and means of transport;
• prohibit the production, modification, safekeeping, transport, import, sale and other disposal of items which they can spread the disease in humans, or instruct for their harmless disposal;
• prohibit or limit the contact of part of the population with the rest of the population in the event of a serious disease;
• prohibit or restrict the operation of facilities in which people are gathered, etc.

As an employer, you will be obliged to comply with these measures (if issued), otherwise it would be a violation of the law and there would be a risk of sanctions.

Any costs of such measures are to be borne by the employer/company; and only if the imposing of such measures would prove to be incorrect or made on no proper legal basis, you could claim damages against the authority that imposed the measure.

If the coronavirus does not spread in your workplace, there are still some risks

The experience of other countries shows that various companies had to temporarily stop production and close their production facilities or otherwise restrict their business due to lack of materials. Such suspension or restriction shall not affect the fulfilment of the employer's obligations towards its employees.

From a labour-law perspective, the employment relationship is ongoing, even when production is temporarily closed or stopped. Not assigning work to an employee for this reason is as an obstacle on the part of the employer.

If you have employee representatives in your business, you may have concluded an agreement regarding wage reimbursement during existence of such obstacles on your part. Such agreement, if properly drafted and negotiated, can save you up to 40% of such wage reimbursement costs during this period (statutory minimal limit is 60% of the employee’s wage).

If you do not have the employee representatives in your business, you will be obliged to reimburse your employees in the amount of 100% of the average monthly earnings (part thereof if the obstacles last less than a month).

Summary

There are many questions regarding coronavirus and its impact to labour law, that have to be solved. Firstly, we recommend taking reasonable steps to ensure prevention in the workplace. Prevention should have a positive impact on the health of the employees and will reduce the risk of additional costs. If the coronavirus breaks out in your business, you will not avoid additional obligations and other labour-law related problems.