Questions and Answers (Q&A)
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.
The present does not represent legal advice or an action program, but our own analysis of the problems presented.
1. What steps are taken by the Bulgarian authorities in order to prevent the spreading of COVID-19 at the workplace?
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.
On 13.03.2020 the Minister of Health issued Order No. RD-01-124/13.03.2020 (“Order No. RD-01-124/13.03.2020”), 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 Bulgarian 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.
Furthermore, the MLSP recommends that the employers ensure 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, in, 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. The employer shall be liable for both the description of the measures and the control over their implementation.
On 17.03.2020 the Minister of Health issued Order No. RD-01-130/17.03.2020 (“Order No. RD-01-130/17.03.2020”), whereby 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 Iran, Bangladesh, India, the Maldives, Nepal, Sri Lanka, Spain, Italy, South Korea, 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.
Art. 57, paragraph 3 of the Bulgarian Constitution provides that 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 Bill for Measures in the State of Emergency Act has been proposed for review, voting and adoption to the National Assembly (“Bill”). At the present moment it has not been yet adopted by the National Assembly, has not been promulgated in State Gazette, and is not into force.
2. What can employers do to protect their employees and the vulnerable groups of employees?
Pursuant to art. 275 of the Bulgarian Labour Code, the employer shall ensure healthy and safe working conditions, so that the threats to the life and health of the employee/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.
3. Can the employees refuse to work or stop working, in the event that the employer does not meet the requirements of Order No. RD-01-124/13.03.2020?
In compliance with article 283 of the Labour Code, 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 Labour Code 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/remotely but are refused to, to stop working until they are permitted to do their work from home/remotely.
4.Working from home – can it be implemented unilaterally by the employer?
Pursuant to Order No. RD-01-124/13.03.2020 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. Working from home is also recommended by the MLSP and the WHO as a preventive measure against COVID – 19.
Pursuant to the current Bulgarian employment legislation, work from home may be performed only with the consent of the worker/employee. In order to implement work from home, the employer shall issue an order, which shall be signed and accepted by the employee.
The Bill proposes that 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 Labour Code.
5. Is a worker or employee who is working from home or remotely discharged of his disciplinary liability?
All employees are under the obligation to perform the work they have agreed to do and shall observe the established labour discipline. The Labour Code 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 by the employer 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 (see above).
6. Can the employer enforce the employees to use paid leave or unpaid leave in the event of temporary work suspension?
For the duration of the state of emergency some employers are forced to temporarily suspend the work. This is because item 1 of Order No. RD-01-124/13.03.2020 provides that all visits to 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, shall be discontinued.
Some of the Bulgarian employers temporary suspended the work of the enterprise or a part of the enterprise at their own discretion.
In accordance with the Bulgarian legislation which is into force at this date, the relations between the employer and the employee shall be settled in the same way, regardless of whether the work shall temporarily be suspended by virtue of Order No. RD-01-124/13.03.2020 or at the employer’s own discretion and judgement:
- -Pursuant to art. 120 of the Bulgarian Labour Code, in the event of idling, the employer shall be entitled to temporarily assign the employees, without consent of the latter, to perform other work in the same or other enterprise, but in the same populated place. It should be noted that in the event of idling, the employees shall be entitled to their full gross remuneration;
- -The employees shall be entitled to their paid leave (pursuant to art. 155 – 156a of the Bulgarian Labour Code) and unpaid leave (art. 160 of the Bulgarian Labour Code).
- -If the idling continues for more than 5 days, the employer shall be entitled to force the employees to use their paid leave (173, para. 4 of the Labour code).
On the other hand, the Bill proposes that, in the event of a declared state of emergency, the obligations of employer shall depend on whether the work is temporarily suspended by virtue of the order of a state authority or at the employer’s own discretion and judgement:
a) In the event that the work is suspended by order of a state authority, the employer:
- -Shall not allow the workers and employees to their working places for the duration of the state of emergency
- -May provide the employees with their paid leave, even without their consent. If the employee is not entitled to a paid leave, then the employer shall provide them with unpaid leave. The period of use of such paid or unpaid leave, shall be calculated as professional experience; or
- -May pay the employee compensation at the amount of 50% of their gross salary, but no less than 75% of the minimum salary for the country;
b) In the event that the work is suspended at the discretion of the employer, the latter:
- -May provide the employees with their paid leave, even without their consent. If the employee has used his/her paid leave, then the employer shall provide them with unpaid leave. The period of use of such paid or unpaid leave shall be calculated as professional experience; or
- -May pay the employees the full gross amount of their remuneration.
7. Are employees who have children entitled to a leave by reason of closures of schools?
In the absence of emergency legislation, the relations between employer and employee shall be settled in line with the legislation which is into force at this date – the employees shall not be entitled to any special leave in connection with the suspension of the class activities and the closure of schools.
Nonetheless, the employees shall be entitled to their paid leave (pursuant to art. 155 – 156a of the Bulgarian Labour Code) and unpaid leave (art. 160 of the Bulgarian Labour Code).
It should be noted that pursuant to art. 162 of the Labour code, in the event that the nursery/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 be relieved of its obligation to pay salaries for the duration of the state of emergency?
At this date, the Bulgarian law does not provide for breaks or indemnities relating to salaries in the situation of a state of emergency. Therefore, employees who perform work or use their paid leave shall be entitled to their full salary amount for the respective period.
However, in the following days the Bulgarian National Assembly is expected to adopt legal provisions, pursuant to which certain portion of the salaries for the period of emergency will be paid or reimbursed to employers by the Bulgarian state (see below).
9. Can the employer terminate the employment relationships?
Pursuant to article 328, paragraph 1, item 4 of the Labour Code, in the event that the work is stopped for more than 15 days, the employer shall be entitled to terminate the employment relationship. The employer may also resort to employment termination by reason of closure of the entire enterprise (art. 328, para. 1, item 1 of the Labour Code), closure of part of the enterprise or downsizing (art. 328, para. 1, item 2 of the Labour Code) or reduction in the volume or work (art. 328, para. 1, item 4 of the Labour Code). It should be noted that this list is non-exhaustive, as the specific option for employment termination depend on the scope and the nature of the employer’s business.
In either case, the employer shall comply with all provisions regarding the lawful termination of the employment relationship.
It should be noted that in the event that the employer intends to undertake massive dismissal, the employer shall, among others, carry out consultations with the representatives of the trade union organizations and of workers and employees within the terms provided for by the Labour Code.
In this relation, in order to avoid dismissals, the Bill proposes that for the duration of the state of emergency, the National Social Security Institute (NSSI) shall transfer 60% of the employee’s insurance income for the month of January 2020 to the employer, who fulfill the criteria to be announced by the Bulgarian Government. However, this provision applies only to insured persons under art. 4, para. 1, item 1 of the Social Insurance Code, i.e. – to workers and employees. Furthermore, it is proposed that if the employer does not pay the employees their full remunerations, then the payments made by the NSSI shall be reimbursed by the employer.
10. Are there any specific legal provisions with regard to quarantine?
Pursuant to article 162 of the Labour code, in case of temporary inability to work due to quarantine the worker or employee shall be entitled to a sick leave. This leave shall be permitted by the medical authorities.
The Bulgarian 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 is due for the time during which the insured person is placed under quarantine. As mentioned above, Order No. RD-01-130/17.03.2020 provides that all Bulgarian citizens and all foreign persons who have obtained continuous, long term or permanent residence in Bulgaria, and the members of their families, returning from Iran, Bangladesh, India, the Maldives, Nepal, Sri Lanka, Spain, Italy, South Korea, the UK, France, Germany, the Netherlands, and Switzerland, shall be placed under quarantine for a period of 14 days at their home or another place of sojourn indicated by the person, with an instruction by the border health control authorities.
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 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”. If an employee or worker has any concerns with regard to his health due to a recent or suspected exposure to the coronavirus, then the employee or worker has to use their paid or unpaid leave, in line with the general provisions of the Labour Code.
11. 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 on 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 Labour Code. 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.
12. 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 reflects the situation as of March 20th 2020, 12:00 PM, which is subject to changes.