Employment

Employment Flash No. 17/2020 – News on different types of state support granted to employers and new methods of flexible work organization, moral harassment at the workplace, granting medical leaves and corresponding allowances

11.08.2020 – The Government Emergency Ordinance no. 132/07.08.2020 on the establishing a series of support measures for employees and employers in the context of the epidemiological situation determined by the spreading of the SARS-CoV-2 virus as well as for the stimulation of workforce occupation was published within the Official Gazette no. 720 dated August 10^th, 2020.

This normative act establishes a series of support and flexibility measures, as follows:

1. Measures regarding the working schedule

The employers have the possibility to reduce the working schedule of the employees with at most 50% from the duration provided within the employment contract.

For the employees in question, the  employer will pay the salary corresponding to the hours actually worked and, in addition, they will benefit from an allowance of 75% applied to the difference between the gross salary provided within the individual employment contract and the gross salary corresponding to the hours actually worked (borne by the state).

There are a series of steps that have to be taken by employers in order to implement this reduction of the working schedule, out of which we mention:

• the information and consultation of the trade union or of the employees’ representatives or of the employees themselves, as case may be, prior to the communication of the employer decision to the impacted employee(s);
• the establishment, by unilateral decision of the employer, of the reduction of the working schedule, for a period of at least 5 consecutive working days, the employer having the obligation to establish the working schedule for the entire month;
• the communication to the employee, at least 5 days prior to the actual application of the measure, of the employer’s decision  to reduce the working schedule, of its daily  distribution and of the salary rights corresponding to this measure;
• the submission within the general employee registry of this change at least on the day prior to the operation of this change;
• the initial bearing by the employer of the allowance amounting 75% mentioned above (i.e. applied to the difference between the usual salary provided within the individual employment contract and the salary for the reduced working schedule) and the payment of this allowance on the date when the salary corresponding to that month is paid, followed by the settlement from the state budget;
• The conditions under which the employer may apply the working schedule reduction and obtain the settlement from the state budget of the sums mentioned above:
• the measure affects at least 10% of the employees of the unit;
• the activity reduction is justified by a reduction on the turnover form the prior month or, at most, form the month before the prior month, of 10% compared to the similar month from the previous year.

Other aspects of interest are the following:

• the prohibition to employ personnel for the provision of activities identical or similar to those provided by the employees to whom the reduction of working schedule applies or the sub-contracting of such activities;
• the interdiction to work overtime at the same employer, as regards the employees to whom this measure applies, during the application thereof;
• the prohibition to reduce the working schedule according to the provisions of Art. 52 (3) of the Labor Code, during the application of the measure at hand;
• the prohibition to operate collective dismissals during the months when the measure of working schedule reduction applies, according to the mentions from above.

2. Support granted for teleworking

With the purpose of purchasing technological packages of goods and services necessary to carry out the teleworking activity, the employers benefit from a one-time financial support for each teleworker, amounting RON 2,500.

This type of state support is granted following the submission order of requests, until 31 December 2020 to the employers, for the employees that worker under teleworking regime for at least 15 working days during the previous state of emergency.

The manner of granting this type of support and the categories of goods and services that may be purchased are to be established by means of ministerial order, in 10ndays from the publication of this GEO.

The employers will be bound by the obligation to submit within a 30 days deadline from the moment of receiving these sums, the justification documents regarding the categories of goods and services purchased. In case of non-compliance with this obligation, the employer will be obliged to fully return the sums received.

3. Other types of support for different categories of workers

• For daily workers, the GEO provides a form of state support of 35% of the remuneration granted for a day of work, granted for a period of 3 months, chosen by the beneficiary of the work, but no later than 31 December 2020, under certain conditions.

For the employees who conclude employment contracts on a determined period up to 3 months, the GEO provides the settlement from the state budget of a sum representing 41.5% of the salary corresponding to the days worked on such positions, for a working schedule of 8 hours a day, but no more than 41,5%   of the average gross, income, under certain conditions. This benefit is granted until 31 December 2020, but for a maximum period of 3 months.

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The Law no. 167/07.08.2020 on amending and completing the GEO no. 137/2000 on the prevention and sanctioning of all forms of discrimination, as well as on the completion of art. 6 of Law no. 202/2002 on equality of opportunities and treatment between women and men has been published within the Official Gazette no. 713 dated August 7th, 2020.

This new piece of legislation introduces the term of moral harassment, defined and detailed through series of provisions, as follows:

• any behavior exercised towards an employee by another employee that is his/her hierarchic superior, by a subordinate and / or by a hierarchically comparable employee, as regards the work relations, that has as purpose or effect a deterioration of the work conditions by violation of rights or dignity of the employee in question, by impairing his/her physical or mental health or by compromising the professional future of the employee, a behavior manifested in any of the following forms:
• hostile or unwanted conduct;
• verbal comments;
• actions or gestures.
• any conduct which, by its systematic nature, is likely to prejudice the dignity, physical or mental integrity of an employee or group of employees, endangering their work or degrading the working environment, including in the form of stress and physical exhaustion;
• moral harassment at the workplace on gender criteria is also prohibited and sanctioned accordingly.

The law also contains a series of provisions regarding the rights and obligations established in relation to cases of moral harassment, or of which we mention:

• the right of every employee to a workplace free from acts of harassment, without being sanctioned, dismissed or discriminated against, directly or indirectly, including with regard to salary rights, professional training, promotion or prolongation of work relations, because he/she has been subjected or has refused to be subjected to moral harassment T the workplace;
• the employer’s obligation to take all necessary measures to prevent and combat acts of moral harassment at the workplace, including by providing within the internal regulations the disciplinary sanctions for the employees that commit acts or deeds of moral harassment at the workplace – the non-compliance with these obligations being sanctioned with administrative fines ranging from RON 30,000 to RON 50,000;
• the prohibition applicable to the employer with regard to the establishment, in any form, of internal rules or measures which compel, determine or induce employees to commit acts or deeds of moral harassment at the workplace – the non-compliance with these provisions being sanctioned with administrative fines ranging from RON 50,000 to RON 200,000.

The law provides whenever it finds that a deed of moral harassment has been committed at the workplace, the court of law may order the following measures:

• obliging the employer to take all necessary measures to stop any acts or deeds of moral harassment at the workplace, as regards the employee concerned;
• reintegration of the employee in question on the position held;
• obliging the employer to pay to the employee compensation equal to the equivalent of the salary rights which he/she has been deprived of;
• obliging the employer to pay compensatory and moral damages to the employee;
• obliging the employer to pay the employee the necessary amount for the psychological counseling that the employee in question requires, for a reasonable period determined by the occupational doctor;
• Obliging the employer to amend the disciplinary record of the employee.

In addition, the National Council for Combating Discrimination also applies, according to the law, any of the measures from letters a) and e) above, whenever it finds that a deed of moral harassment has been committed at the workplace. Employer’s on-compliance with the measures imposed by the Council is considered administrative offense and is sanctioned by fines ranging from RON 100,000 to RON 200,000.

As regards the sanctions applicable to employees that commit acts or deeds of moral harassment at the workplace, the law provides for disciplinary liability, according to the law or the internal regulation of the employer, that does not exclude the possibility for administrative or even criminal liability.  The administrative fines for moral harassment committed by an employee towards another employee range from RON 10,000 to RON 15,000.

Note: The two normative acts amended and completed by means of the law at hand will be republished, with a new numbering of their texts.

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The Government Emergency Ordinance no. 126/31.07.2020 on amendment of GEO no. 158/2005 on the health  social  insurance leaves and allowances and on establishing some measures regarding the health social insurance allowances was published within the Official Gazette no. 695 dated August 3^rd, 2020.

This normative act establishes, as a main aspect, the right of persons to whom the measures of isolation or quarantine apply (under Law no. 136/2020) to the specific medical leave and the corresponding allowance. Out of the provisions contained within the normative act at hand, we mention the most relevant ones from an employment perspective, as follows:

• The specific allowances for temporary work incapacity, applicable in case of persons for whom the measure of isolation has been established according to Law no. 136/2020, are borne entirely by the state form the first day of incapacity.
• The specific medical leaves and allowances for temporary work incapacity determined by infectious-contagious diseases in case of which the measure of isolation applies, are granted until the date when the person is confirmed as cured, based on specific examination or on the recommendations of the doctor.
• The duration of specific medical leave for a series of conditions including the infectious-contagious diseases for which the measures of quarantine or isolation have been established does not reduce the number of medical leave days granted to insured persons for other conditions.

Note: The GEO no. 158/2005 will be republished with a new numbering of their text, after the approval of the present GEO.

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The Order no. 1395/06.08.2020 on the amendment and completion of the provisions of the Methodological Norms of GEO no. 158/2020 regarding health social insurance leaves and allowances has been published within the Official Gazette no. 708, dated August 6^th, 2020.

An important aspect established by means of this normative act regards the elimination of the necessity of the entities paying the allowances for temporary work incapacity to issue a certificate ascertaining the number of medical leave days for cases of: tuberculosis, quarantine and diseases for which the measure of isolation was established.

In addition, the order at hand introduces the deadline of 90 days for the submission to the registry of the health insurance authority, on paper or electronically, of the written request for settlement of the sums concerned, to which a centralizing document regarding the medical leave certificates must be attached.

The Romanian version of this newsletter is available here.