Employment

Employment Flash No. 10/2022 – Latest news in the labor law field

21.10.2022 – Latest news in the labor law field regarding a series of legal amendments to the Labour Code and implications for employment relations

The Law no. 283/17.10.2022 amending and supplementing Law no. 53/2003 – Labour Code and the Government Emergency Ordinance no. 57/2019 on the Administrative Code was published in the Official Gazette no. 1013 dated October 19, 2022.

This law transposes the Directive (EU) 2019/1158 on the work-life balance of parents and carers (the “Work-Life Balance Directive”, as well as the Directive (EU) 2019/1152 on transparent and predictable work conditions in the European Union (the “Transparent Working Conditions Directive”).

The provisions introduced by the new law focus on a series of essential employment aspects, out of which we mention the main ones:

Additional/changed items to be included in the initial informing of the employee

The following information also has to be reflected within the individual employment agreement, as the case may be:

• if the employee does not have a fixed workplace (working in different locations) – it will be clarified whether travelling between locations/places is provided or paid for by the employer, as the case may be;
• other constituent elements of the salary rights, outlined separately, the frequency and method of salary payment;
• the conditions for the performing and compensating/payment of overtime;
• where the case, arrangements for the organization of shift work;
• the conditions of applicability of a probationary period, if such is provided;
• the employer’s payment of private medical insurance, additional contributions to the employee’s voluntary or occupational pension, in accordance with the law, and the granting, at the employer’s initiative, of any other rights (cash benefits granted or paid by the employer as a result of the employee’s professional activity, where applicable).

Note: The new official template of the individual employment agreement will be established by Ministerial Order within 30 days from the date of publication of the new law in the Official Gazette and will be available on the Labour Inspectorate’s website.

Working time. Flexible work arrangements

• new definitions are introduced, i.e., for working program (schedule) and manner (model) of organizing work;
• the employee may request, and the employer may establish, with the agreement of the employee, individualized (flexible) work schedules, including for employees on carer’s leave, which may have a limited duration – e., adaptation of working hours, including through the use of remote working arrangements, flexible work schedules, individualized work schedules or reduced working time;
• if the employer refuses the employee’s request for flexible working time arrangements, the employer must justify such refusal in writing within 5 days of receiving the request;
• in case of individualized work schedules on limited durations, the employee has the right to return to the original work schedule, as a rule, at the end of the agreed period, although exceptions may apply in the event of a change in the original circumstances.

A new type of leave – carer’s leave

• Carer’s leave is granted to employees in order to provide personal care or support to a relative or person living in the same household as the employee, who needs care or support due to a serious medical condition;
• Upon written request of the employee, the employer will grant carer’s leave for a duration of 5 working days in a calendar year; longer durations may be determined by the applicable collective labour agreement or by special laws;
• carer’s leave is not included in the duration of annual leave and constitutes seniority in employment and in the specialty;
• during carer’s leave, employees are insured under the social health insurance system without payment of contributions, this period constituting a contribution period for establishing the right to unemployment allowance and temporary incapacity allowance, as per the law.

Note: Serious medical problems and the conditions for granting carer’s leave will be established by ministerial order, to be issued within 30 days from the publication of the present law in the Official Gazette.

Days off for family emergencies

• this right is granted if the employee needs to be absent from work in unforeseen circumstances caused by a family emergency due to illness or accident, which makes the employee’s immediate presence indispensable;
• the maximum duration of this entitlement is 10 working days in a calendar year;
• this entitlement is granted subject to prior notification of the employer and to the recovery of the period of absence;
• the employer and the employee agree on the arrangements for recovering the period of absence in this context.

Amendments regarding the content and implementation of internal regulations

• Two additional requirements are introduced in the minimum statutory content of the internal regulations: (i) rules on prior notice; (ii) information on the general training policy for employees, if any.
• It is expressly stated that the employer must bring the internal rules to the employee’s acknowledgement on the first day of work, ensuring proof that this obligation has been fulfilled;
• As methods of informing employees, paper or electronic communication is acceptable (provided that the document is accessible to the employee and can be stored and printed by the employee).

Prohibitions regarding probation period

• Prohibition to establish a new probationary period also for cases where, within 12 months, the same parties conclude a new individual employment agreement, for the same position and duties.

New right recognized for employees

• The right of an employee who has completed his probationary period and has a work seniority of 6 months with the same employer to request a transfer to a vacant position involving more favourable working conditions;
• The employer is obliged to respond in writing, in a justified manner, within 30 days of the employee’s request to exercise this right.

Dismissal prohibitions and corelated rights

• The new law introduces new prohibitions on dismissal, i.e., for the exercise of employees’ rights regarding information on the essential elements of the employment relationship, individualized work programs, probationary period, vocational training programs, as well as for the exercise of rights expressly recognized by law under Article 39 para. (1) of the Labour Code;
• Also, employees may not be dismissed during paternity leave, carer leave or during absence from work due to family emergencies;
• As a rule, employees who consider that they have been dismissed for exercising the abovementioned rights may request the employer to provide in writing additional justification for the dismissal decision in these specific cases.

Other specific aspects addressed in the new law

• Employees will be able to refer to the Labour Inspectorate if the employer does not inform them of all the elements required by law;
• Employees will be able to raise a challenge in court and claim compensation for damages suffered as a result of the employer’s failure to inform them (previously, the law provided a 30-day term calculated from employer’s failure to inform the employees accordingly);
• New fines are provided for non-compliance/non-granting of rights introduced by the provisions of this law;
• The scope of application of the Labour Code is extended to include the category of employed persons (regardless of nationality) who are legally working for an employer with headquarters established in Romania;
• Employees retain the rights acquired prior to the granting of the leaves referred to in Article 51 para. (1) of the Labour Code, and during carer’s leave or the absence for family emergencies also for the period of such leaves / absences;
• The granting of paternity leave is not conditional on the period of service or length of service and the employer has the obligation to grant it in accordance with the law;
• The duration of carer’s leave and the period of absence for family emergencies are considered as periods of work, for the purposes of determining annual leave;
• The possibility to work for different employers, but without overlapping working schedules;
• Increased focus on adverse treatment towards employees and introduction of specific provisions in this field.

For ongoing employment contracts: additional information on the conditions applicable to the employment relationship shall be provided by the employer within a maximum of 30 working days from the date of receipt of the employee’s written request in this sense; the absence of such a request shall not preclude the application of certain established minimum entitlements, as per the law.

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The Law no. 275/30.09.2022 rejecting the Government Emergency Ordinance No. 37/2021 amending and supplementing Law No. 53/2003 – Labour Code was published in the Official Gazette no. 961 dated September 3, 2022.

As per the effect of the rejection law, the GEO that used to establish derogations for microenterprises from the obligation to have job descriptions prepared in writing annexed to the individual employment agreements and internal regulation established at company level, is no longer applicable.

As such, all employers have to ensure that employees have job descriptions prepared in writing, as part of the individual employment agreements, and to implement internal regulation at company level.     

The Romanian version of this newsletter is available here.