Questions and Answers (Q&A)
Amended and supplemented version as of March 24th, 2020
in accordance with the adopted Law on the Measures and Actions during the Period of State of Emergency, Declared by a Decision of the National Assembly on the 13th of March 2020
In the present unprecedented situation of coronavirus pandemic employers face multiple financial, administrative and economic challenges. The present Q&A will outline, without pretence of exhaustiveness, some aspects of the relationships between employer and employee in the context of the emergency measures taken by the Bulgarian authorities in response of COVID-19.
On 13.03.2020 the Bulgarian National Assembly adopted a Decision for declaration of a state of emergency, effective from 13.03.2020 and until 13.04.2020.
Pursuant to the Bulgarian Constitution, upon declaration of war or military situation or other state of emergency, temporary restrictions on the exercising of certain rights of the citizens can be imposed by a law.
A Law on the Measures and Actions during the Period of State of Emergency, Declared by a Decision of the National Assembly on the 13th of March 2020 (“LMAPSE”) is promulgated in State Gazette, issue 28/24.03.2020. The newly adopted law, in addition to the emergency and temporary legal provisions, introduces multiple amendments to legislative acts, which are into force, including those relating to employment relationships.
The present does not represent legal advice or an action program, but our own analysis of the problems presented.
1. What measures are put in place by the Bulgarian authorities in order to prevent the spreading of COVID-19 at the workplace?
On 13.03.2020 the Minister of Health issued Order No. RD-01-124/13.03.2020 (“the Order”), whereby all employers, depending on the specifics and the capabilities in regards to the relevant labour activity, shall implement remote form of work for their employees. Where the latter is not possible, the employers shall organize the implementation of enhanced anti-epidemic measures at the working premises, including filters, disinfection and air ventilation, training for keeping a good personal hygiene, as well as shall not allow the presence of any employees or other individuals who display symptoms of acute infectious diseases.
In this regard, the Ministry of Labour and Social Policy (MLSP), in line with the guidelines provided by the World Health Organization (WHO), recommends that employers utilize the provisions of the labour legislation in order to establish such an organization of the work process, which does not allow for the gathering of many individuals at a single place at the enterprise in order to minimize the direct contact between the employees and between them and the employer and the clients as well. Employers are asked to consider postponing activities such as carrying out sessions of general assemblies, conferences, seminars, trainings, etc.
The MLSP recommends that the vulnerable groups of employees mandatorily comply with the measures for prevention of the spreading of COVID-19.
In addition to the recommendations of the MLSP, Executive Agency General Labor Inspectorate (EAGLI) reminds employers that they should describe the measures taken with regard to the risk minimization in the risk assessment. In the case of a new risk, such as the COVID-19 spread, employers shall supplement the risk assessment at workplaces with the assessment of the emerging risk, and shall propose measures to minimize it. These measures shall comply with the prescriptions of the health authorities and are in two directions: organizational and technical. The physician of the employer’s Occupational Health Service shall participate in the risk assessment and the prescribing of the measures, as the employer shall be liable for both the adoption of the measures and the control over their implementation.
All Bulgarian citizens and foreign persons who have obtained continuous, long term or permanent residence in Bulgaria, and the members of their families, returning from certain third countries, including Iran, Bangladesh, India, the Maldives, Nepal, Sri Lanka, Spain, Italy, South Korea, as well as the UK, France, Germany, the Netherlands, and Switzerland, shall, for a period of 14 days, shall be placed under quarantine in their home or another place of sojourn, indicated by the person, with an instruction by the border health control authorities.
Workers and employees who have a place of work outside the populated place of the permanent address of the worker or employee may pass through the established checkpoints at the entry and exit roads of the regional centres after presenting an official note, issued by the employer.
2. What can employers do to protect their workers and employees and the vulnerable groups of employed persons?
Pursuant to art. 275 of the Bulgarian Labour Code (LC), the employer shall ensure healthy and safe working conditions, so that the threats to the life and health of the employee or worker to be removed, limited or mitigated.
In help of the employers, the WHO has provided a list of recommended measures, which can be found here: https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf.
The MLSP states that employers should be aware that with the higher age, comes a higher risk for a more severe pull-through of the disease. The elderly employees are more endangered as well as those with weakened immune system, with diabetes, those with cardio-vascular, chronic respiratory and pulmonary diseases, hypertonia and those subject to therapies, which compromise the immune system.
In order to comply with this recommendation, employers, together with the Occupational Health Service and depending on the scope and the nature of the employer’s business activities, shall pick out adequate measures in view of the protection of the health and safety of the employees at risk: persons over the age of 60, employees reassigned due to partial incapacity, or persons suffering from other risk-related health conditions.
The LMAPSE introduces a new provision, whereby the employer shall be under the obligation to allow paid or unpaid leave at the request of an employee, who falls within certain protected categories of employees, including: workers and employees with permanent partial incapacity of 50 and more than 50 percent, workers reassigned due to partial incapacity, persons suffering from ischemic heart disease, active tuberculosis, oncological disease, occupational disease, mental illness and diabetes.
The LMAPSE provides for a supplement to the Persons with Disabilities Act (PDA). In accordance with the newly introduced text under the PDA, in the event of a declared state of emergency, if a necessity of a disabled person is filed for, but is not ascertained in time, the person shall be entitled to the type of support from the date of filing of the documents for preparation of an individual assessment of the necessities, on the basis of the conclusions of the individual assessment of the necessities.
3. Can the employees refuse to work or stop working, in the event that the employer does not meet the anti-epidemic requirements?
In compliance with article 283 of the LC, the worker or employee shall have the right to refuse performance or to stop work when a serious and imminent danger arises for his life or health, informing without delay his immediate manager. In these cases, continuation of work shall be permitted only after the elimination of the danger, upon the order of the employer or the immediate manager.
Therefore, in the event that the measures provided by the Order No. RD-01-124/13.03.2020 and the recommendations of the MLSP and the WHO are not implemented by the employer, by virtue of art. 283 of the LC the employees shall be entitled to stop work until the implementation of these measures. This includes, without being limited to, the right of employees who can do work from home or remotely but are refused to, to stop working until they are permitted to do their work remotely.
4. Can the employer unilaterally implement work from home or remote form of work?
All employers, depending on the specifics and the capabilities in regards to the relevant labour activity, shall implement remote form of work for their employees.
Pursuant to the amendments to the LC, introduced by the LMAPSE, in the event of a declared state of emergency, the employer shall be entitled to assign the employee to temporarily do work from home or remote work, without the consent of the employee. In this case, employer shall issue an order, which shall set forth all the conditions for remote work/work from home, as provided for by the Bulgarian LC. The order for remote work or work from home shall also set forth the conditions and procedures for assignment, performance and control of the work as in these cases only the place of work shall be altered, without changing any other provisions of the employment agreement.
5. How shall the disciplinary liability of the workers and employees be sought in case of work from home and remote form of work?
All employees are under the obligation to perform the work they have agreed to do and shall observe the established labour discipline. LC does not provide for an exception or exemption from that requirement for employees or workers who do work from home or remotely. Moreover, employees or workers who do work from home are under the obligation to provide access to the employer and the control bodies to the premises serving as workplace for inspection.
Therefore, the general provisions with regard to the establishing of a disciplinary violation and the imposing of disciplinary sanctions shall apply and shall be observed in any case. In any disciplinary proceeding, the employer shall also account for the specifics of each employment relationship.
Nonetheless, given the remote nature of work the employer is sometimes unable to establish the disciplinary violation within due time. Hence, the employer shall put in place controls with regard to the reporting of the work done and the working time, information and personal data security requirements, as well as rules for compliance with any relevant internal regulations and policies. These requirements shall also be provided for in the order for implementation of work from home and remote form of work (see above).
6. Can the employer force the employees to use paid leave or unpaid leave in the event of temporary work suspension for a period until the repealing of the state of emergency?
For the duration of the state of emergency some employers shall temporarily suspend the work. These are the employers, who carry out activities in the categories of premises, specified in the Order, namely: entertainment and play halls, discotheques, bars, restaurants, fast food restaurants, pubs, cafes and large retail centers (malls), with the exception of bank and insurance offices, food stores and pharmacies, situated inside them.
Some of the Bulgarian employers temporarily suspended in whole or in part the work at the enterprise at their own discretion.
The amendments to the LC, introduced by the LMAPSE provide for express and special provisions, pursuant to which in the event of a declared state of emergency:
- Work at the enterprise or part of the enterprise may be suspended by order of a state authority. In this case the employer shall not allow the workers and employees to their working places for the duration of the state of emergency;
- Work at the enterprise, part of the enterprise or the work of individual workers employees may be suspended may be suspended at the discretion and by order of the employer, for the whole or part of the duration of the state of emergency, until the repeal of the state of emergency.
In both cases, the employer:
– May provide the workers and employees with up to half of their paid leave, without their consent, as the period of use of such paid leave shall be calculated as professional experience;
– In case the employer does not provide paid leave in line with the above, the employer shall pay the workers and employees the full gross amount of their remuneration.
7. Are employees who have children entitled to a leave in view of the closures of schools?
In accordance with the Bulgarian labour legislation the workers and the employees shall not be entitled to a special leave in connection with the suspension of the class activities and the closure of schools.
In the situation of a declared state of emergency and by virtue of the new provision of art 173a of the LC, the employer shall be under the obligation to allow paid or unpaid leave at the request of mothers or single fathers or adoptive parents (whose children are of no more than 12 years of age or, regardless of the age – children with disabilities). A supplement to the Government Officials Act provides for a similar obligation of the appointing authorities.
It should be noted that pursuant to art. 162 of the LC, in the event that the nursery or kindergarten or the child is placed under quarantine, the parent employee shall be entitled to a sick leave for the period of quarantine, even if the child is in good health.
8. Can the employer terminate the employment relationships?
If the work is stopped for more than 15 days, or upon closure of the entire enterprise, closure of part of the enterprise, downsizing, or reduction in the volume of work, as this list is non-exhaustive, the employer shall be entitled to terminate the employment relationship in compliance with all provisions regarding the lawful termination of the employment relationship.
In the event that the employer intends to undertake massive dismissals, the employer shall carry out consultations with the representatives of the trade union organizations of workers and employees within the terms provided for by the LC, as well as to notify the competent authorities for the initiation of the proceedings.
In order to avoid dismissals in the sectors affected by the Order, the LMAPSE provides that for the duration of the state of emergency, but for no more than three months, the National Social Security Institute (NSSI) shall transfer 60% of the employee’s insurance income for the month of January 2020 to the employers engaging in the affected sectors, who fulfill the criteria specified in the Decree on Determining the Conditions and Procedures for Payment of Compensations to the Employers, who have Suspended Work due to the Declared State of Emergency. These payments shall be made at the expense of the “Unemployment” fund of the state social security, and if the employer does not pay the employees their full remunerations, the payments made by the NSSI shall be reimbursed by the employer.
9. Is an employee who is placed under quarantine entitled to a compensation for temporary inability to work?
Pursuant to article 162 of the LC, if the employee is placed under quarantine, the employee shall be entitled to a sick leave due to quarantine. This leave shall be permitted by the medical authorities.
The Social Insurance Code provides that the persons insured for general illness, old age and death, labour accident and occupational disease, as well as unemployment shall be entitled to monetary compensation for inability to work due to quarantine.
The compensation for the first three working days of the sick leave shall be paid by the employer – at the amount of 70% of the average daily gross remuneration for the month, in which the temporary inability to work has occurred, but not less than 70% of the average daily agreed remuneration.
The compensation for the fourth and the following days is at the amount of 80% of the average daily gross remuneration for the month and shall be paid by the NSSI.
The Bulgarian legislation does not provide for and the workers and employees are not entitled to a special leave for “self-quarantine”.
10. Are there any restrictions with regard to the processing of personal data of employees for the purposes of COVID-19 prevention?
The Bulgarian Commission for Personal Data Protection has not yet delivered an explicit statement on this matter. Other national Data Protection Authorities have indicated that, while employers are entitled to process personal data, they must refrain from collecting data about an individual’s health in advance and in a systematic and generalised manner or through individual inquiries and requests.
Employers are entitled to collect personal data only for the purposes of meeting their duties as employers and the implementation and management of the respective anti-epidemic measures (limiting travel and meetings or respecting hygienic measures). Employers, however, cannot take measures which are likely to infringe the privacy of individuals concerned, by collecting health data, which would go beyond the management of suspected exposure to the virus.
The employers are responsible for the health and safety of employees in accordance with the LC. Hence, they must implement actions to prevent occupational risks, provide information and training, and finally set up an organization and appropriate resources.
In this regard, the employer is permitted to: implement policies in order to encourage its employees to disclose information concerning their health in connection with a possible coronavirus exposure, to the employer or to the competent health authorities; facilitate their transmission by setting up dedicated channels; promote remote working methods and encourage the use of occupational medicine.
If a report about exposure to the disease is made, an employer may record the date and the identity of the person suspected of having been exposed the organizational measures taken (confinement, teleworking, orientation and contact with the occupational doctor, etc.).
The employer, however, shall not be entitled to force or oblige (by means of orders for example) its employees to disclose any data about the health of their relatives.
11. Can the employer disclose information about a potential or confirmed case of the disease to other employees?
The employer shall take appropriate steps to protect the rights and interests of the data subject concerned. If an employee is potentially sick or confirmed to be sick with the coronavirus, this information should be accessed on a need-to-know basis. Hence, in order to protect the health and safety in the workplace, the employer may inform the other employees that there is a potential or confirmed case of COVID-19, but shall not disclose the name of the person concerned.
The present does not represent legal advice or action plan, but our own interpretation and analysis of the matters examined above.
This text was prepared by Victoria Penkova, Attorney-at-Law and Managing Partner, Diana Milkova, Attorney-at-Law, and Yavor Tankov, Attorney-at-Law, members of the team of “Dyulgerova & Penkova” Law Firm