CONCERTO law firms have prepared short summaries of changes that COVID 19 has driven to legislation in Labour Law in our countries.

Each law firm has asked its lawyers working on Labour Law to answer the same five questions that demand answers.

Their answers will help company managers, entrepreneurs, legal advisors, Human Resources professionals and other advisors be aware of principal changes in their home country and other countries in which they are operating.

These brief overviews may prompt further questions or interest in particular advice and details.  The contact information for lawyers in each CONCERTO law firm can be found at the end of each article.

INFORMATION PER COUNTRY

Disclaimer:

All this document has been written between 19 and 29 May 2020, and is subject to change over time. To ensure that you have the most up-to-date information adapted to your situation, please contact the lawyer in the country concerned directly.

Concerto’s contact details:

President: Jaqueline A. Ferreira Sluiuzas – Partner in Brazil – jaq@a3advogados.com

Management: Yves Repussard – yrepussard@avens.fr ; Yves d’Audiffret – yda@mcw.be

AUSTRIA

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

The obligation to pay the salaries of employees who are prevented from providing their work due to the measures has been the subject of a controversial discussion.

Consequently, the legislature has introduced a legal clarification whereby these federal measures fall in the sphere of the employer. The employer is responsible to pay the salary even if the employee is prevented from providing their work. In return the employer may order the employee to consume some amount of his/her vacation entitlement and positive time credits.

Accordingly:

  • Employee affected by COVID-19

The employer has to pay the salary according to the general system of paid sick absence without special distinction to COVID-19.

  • Employees quarantined but not sick

Employees who are quarantined by an administrative act are entitled to their full salary. In this case, however, the employer can claim a refund for the paid salary from the federal government.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

Employees who belong to the risk group of vulnerable persons, as defined by the legislature, can receive a COVID-19 risk certificate by their doctor. Employees with these risk certificates are entitled to a paid leave of absence, if their work cannot be done via home office or the employer cannot guarantee with greatest possible security that an infection at the workplace is impossible

  • Employees with a relative falling into the category of vulnerable persons.

There is no general entitlement for paid leave of absence for employees with relatives falling into the category of vulnerable persons.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

In general, if there is no other option for childcare for younger children in case of hardship, employees can be entitled to paid absence for up to one week.

Schools in Austria, however, are open for supervision and care of children, but not for education. Therefore, the employee is not entitled to a paid leave of absence for childcare.

If, however, the business of the employer is closed by federal measures, the employer may voluntarily grant the employee a paid leave of absence for childcare up to three weeks and receives a third of the salary cost from the federal government under some circumstances.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

There are no special rules regarding making redundancies during this “health emergency”. Therefore, the general laws apply and employment relationships may be terminated under the same conditions as before.

If, however, a company makes use of short time work, it is obliged to keep the same number of employees until up to one month after the end of the short time work period. Furthermore, during this period the company can terminate employment relationships only under strict conditions.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

In general, the employer has to ensure that the risk of infection for the employees and customers is as low as possible. Therefore, the employees have to maintain a minimum distance of 1 meter to any other person. If this is not possible, the employer is obliged to implement further protective measures.

If employees are in contact with customers, the employees have to wear a mask covering mouth and nose.

Furthermore, the legislature has issued differentiated rules for different sectors of business (e.g. gastronomy, accommodation business, etc.). 

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

Companies can apply for short time work support, whereas the normal working time of the employee has to be reduced between 10 % and 90 %. In this case, the employee is entitled to a net guarantee of between 80 % and 90 % of the former salary and the employer receives a subsidy for the lost working hours by the Austrian Unemployment Agency, which covers most of the additional costs arising from the net guarantee. Short time work can be applied for 3 months and can be extended for another 3 months.

During the short work time period and up to one month after it, the employer is obliged to keep the same number of employees and the employer can terminate employment relationships only under strict conditions.

Furthermore, the company can receive subsidies for employees who are quarantined by an administrative act or who are granted paid leave for childcare under some circumstances (see above).

With no regard to labour law, there are further state aids including hardship funds, bridging loans and fixed cost subsidies.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

In general, holiday leave can only be mutually agreed upon by the employer and the employee. The employer is not entitled to order the employee to consume his/her holiday unilaterally.

If, however, federal measures lead to the temporary shutdown of businesses, the employer may order the employee to consume some amount of his/her holiday entitlement and positive time credits.

Increased working time can be ordered with regard to the general maximum working time according to the working time act. Furthermore, the company may also end an already applied short time work sooner, if there is no more need for it.

Main urgent texts related to COVID-19 in labour law:

https://www.bmafj.gv.at/Services/News/Coronavirus/FAQ-Arbeitsrecht.html

https://www.wko.at/service/faq-coronavirus-infos.html

Contact:

Christian Marchhart and Pius Winklmary : office@ulsr.at

BELGIUM

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

The main obligation of an employer is to provide employees with the agreed work and to pay them the agreed remuneration accordingly. Employees can only claim remuneration if they performed the work. When economic circumstances or force majeure make it impossible for an employer to provide an employee with work temporarily, be it from an office or working from home during the coronavirus pandemic, the employer can place the employee under a temporary unemployment scheme in which the employee will obtain a daily allowance from the state unemployment agency. The employer is not responsible for paying the employee’s salary under such a scheme. A special coronavirus unemployment scheme has been adopted by the Belgian authorities.

Accordingly:

  • Employee affected by COVID-19

Will only receive sick pay if they were not put into the temporary unemployment scheme first by their employer.

  • Employees quarantined but not sick

Will not be paid by their employer if it is not possible for them to work from home. Such employees can be placed into the temporary unemployment scheme.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

Could be temporarily discharged by the occupational physician for their safety. In such cases, those employees will not receive their remuneration but be placed into the temporary unemployment scheme.

  • Employees with a relative falling into the category of vulnerable persons.

Could be temporarily discharged by the occupational physician for their safety. In such cases, those employees will not receive their remuneration but be placed into the temporary unemployment scheme.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

The need for childcare will, in principle, not be sufficient for employees to refuse to perform their work. They will therefore not be entitled to their remuneration nor temporary unemployment benefits. However, these employees could ask to temporarily and partially suspend their work with special coronavirus parental leave.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

The employer can decide to make an employee redundant during this health emergency under the usual rules of dismissal. If employees can perform their work (this includes working from home) during the health crisis, no specific rule will apply for dismissals. If the employee is placed into the temporary unemployment scheme, the notice period is not affected under the current rules and will continue as normal. But this could change in the coming days, since a new law might be adopted and suspend the notice period for employees placed into the temporary unemployment scheme during the coronavirus crisis.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

The employer is mainly responsible for making sure the employees can comply with the rule of social distancing (min. 1.5 m between two persons). If the rule of social distancing cannot be respected, employees are required to wear masks. The employer is also responsible for taking the necessary protection and prevention measures to protect the health and safety of employees.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

The employer has the option of placing the employee into the temporary unemployment scheme if the criteria are met. In such a case, the employer still has the right to dismiss an employee. However, a new law will probably be adopted to suspend the notice period during which time the employee was put into that scheme. Other state aid does not impact the right of an employer to proceed with redundancies. Such aid may include possible deferral of the employer’s social contributions, the possibility of agreement with the National Office of Social Security on a new payment schedule for social contributions, a possible deferral of tax payment, allowances given in certain circumstances by the Belgian regions or the temporary deferral of companies’ debt for the period between April 24th and May 17th.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

If the holidays are determined individually for each employee, the holiday dates are to be agreed upon between the employer and the employee. The employer can, also, under certain rules, close the company and put the employees on holiday collectively. In certain crucial sectors, the employer and an employee can agree that the employee will do voluntary overtime of up to 11 hours a day and 50 hours a week. Those employers can hire employees under successive short-time contracts. They can, as well, benefit from staff seconded by another company under specific rules. For the other sectors, the supervisory authorities consider the coronavirus crisis an accident justifying certain derogations with regard to ordinary work schedules. The employer can also hire student-workers under some derogatory rules.

Main urgent texts related to COVID-19 in labour law:

Collective bargaining nr 147 2020, March 18th establishing the suspension (total or partial) of the employment contract scheme due to economic difficulties resulting from the coronavirus crisis

Royal decree 2020, March 30th regarding the adaptation of unemployment scheme procedures related to COVID-19

Royal decree nr 14 2020, April 27th aiming to guarantee good work organisation in critical sectors

Royal decree nr 17 2020, May 4th taking measures in order to permit employers to postpone payments owed to the National Office of Social Security

Royal decree nr 23 2020, May 13th regarding coronavirus parental leave

Contact:

Amaury Pirlet: a.pirlet@mcw.be

Anne Witmeur: a.witmeur@mcw.be

BRAZIL

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

In Brazil, the general rule of salary payment still applies during the COVID-19 pandemic. Accordingly, the employer is responsible for paying salaries to employees, except in case of employees in sick leave or receiving governmental aids.

Accordingly:

  • Employees affected by COVID-19

A sick leave must be granted to employees affected by COVID-19 and their absence from work is deemed justified.

The employer must pay proportionally the salary during the first 15 days of the leave and then the employee may apply to social security: “illness aid” (amount corresponding to 91% of the salary, within a certain cap).

The employee is entitled to free health treatment offered by the Brazilian Government.

  • Employees quarantined but not sick

An imposed 14-day quarantine is deemed a justified absence from work and the employer must pay the salary during this period.

The employer may impose teleworking, individual or collective vacation, anticipation of holidays etc. during the quarantine period. This rule will also apply in the situations below indicated.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

There is no legal obligation to grant leave from work to employees in the risk group. Any absence from work may be deemed unjustified.

Employees in the risk group have priority for scheduling individual or collective vacations.

  • Employees with a relative falling into the category of vulnerable persons.

There is no legal obligation to grant leave from work to employees in such situation. Any absence from work may be deemed unjustified.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

There is no legal obligation to grant leave from work to employees in such situation. Any absence from work may be deemed unjustified.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

In Brazil, the general rule of dismissals is still applicable during this special period. Therefore, companies may proceed with individual or collective dismissals of employees, with or without just cause.

In case the employee is receiving governmental aid due to reduction of time of work and salary or suspension of labour contract, the employee enjoys employment guarantee during the period of the governmental aid plus an additional period of same duration of the governmental aid.

In case of dismissal without just cause during this employment guarantee, the employer must pay, in addition to regular severance pay, damages to the employee calculated as provided in law.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

It is a general obligation of the employer in Brazil to ensure safe and healthy conditions in the workplace.

Given the COVID-19 pandemic, the employer must reduce the contamination risks, following municipal, state and federal health protocols, including hygiene and social distancing measures and fostering awareness among employees of contamination risks and prevention measures.

Taking the temperature at the entrance to the company is still controversial in Brazil. If implemented, it is advisable to obtain employee’s previous consent, inform employees about the consequences of excessive temperature and secure privacy of temperature information.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

The main governmental aids in Brazil are:

  • reduction of time of work and salary for 90 days through individual or collective agreement (depending on the value of the salary and the reduction percentage). Employee is entitled to receive a governmental aid, based on the applicable unemployment insurance considering the reduction percentage. Compensatory help from the employer is optional, in addition to receiving the reduced salary.
  • suspension of labour contract for 60 days through individual or collective agreement (depending on the value of the salary). Employee is entitled to receive a governmental aid, based on the applicable unemployment insurance (up to 70% of the unemployment insurance, if employer’s 2019 turnover is higher than R$4.800.000,00 – around USD860.000,00). Compensatory help from the employer is mandatory in case its 2019 turnover is higher than R$4.800.000,00 (around USD860.000,00).

The employer is also entitled to postpone the payment of the Unemployment Compensation Fund (8% of the salary amount) for March, April and May 2020.

There is a specific governmental aid to informal workers and individual microentrepeneurs, which consists of a monthly payment of R$600,00 (around USD110,00).

Please refer to §2 above for dismissals of employees while receiving governmental aids.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

During this period, the employer in Brazil may impose, among others, the following measures:

  • the work regime may be changed to teleworking, regardless of individual or collective agreement;
  • individual or collective vacation may be granted or advanced (5-day minimum duration); and
  • holidays may be anticipated.

In case there is the interruption of work due to the COVID-19 pandemic (which is recognized by law as a situation of “force majeure”), the employee will continue to receive salary during the interruption period and, upon resumption of work, the employer may require 2 extra working hours per day, for a maximum 45-day period, respecting a 10-working hour limit per day, to recover the interruption period.

Health care companies are subject to special rules (e.g. suspension of vacation and increase of working time through individual agreement).

Main urgent texts related to COVID-19 in labour law:

Contact:

Pablo Goytia Carmona: pc@a3advogados.com

CANADA

*In Canada, there are federally regulated industries (namely aviation and banks) while others are regulated by the provincial governments. Each province can therefore regulate differently. As AVENS AVOCATS S.A. is in Quebec, the answers are mainly relating to Quebec.

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

During confinement, the following are the options provided to employers:

  1. the employee continues to be on the payroll,
  2. the employee is temporarily laid off, and during that time benefits from Employment Insurance program which provides temporary income support to unemployed workers while maintaining their employment ties with their employer for a maximum of 6 months; or
  3. the employment is terminated, and all severance indemnities are immediately payable.

All other situations, including but not limited to pay cuts in pro rata of reduced workdays, must be made on an agreed basis between the employer and the employee.

Accordingly:

  • Employees affected by COVID-19

Employees affected by COVID-19 are on sick leave. In such cases, employees must get tested and remain on sick leave until they are tested negative twice (or as per each province’s rules in that regard).

If an employee is on sick leave, the employer will have to continue paying the salary in accordance to the Labour Standard Act or the employee will be put on the employer’s Health Insurance program.

  • Employees quarantined but not sick

In Canada, you cannot force an employee to return to work if such work can be executed from home (quarantined or not).

As for employees that must execute their work at the employer’s premises, if the employer has set up correctly the proper sanitary measures in accordance with the rules set out by the governments (federal and provincial), the employee must then return to work. If the employee refuses to go back to work, it can be considered as a resignation from their functions.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

It is not prohibited for a person under age 70 to continue to work. 

It is the employer’s obligation to take the required measures to protect the health and the safety of the employee. Regarding the employees identified to be at risk, the employer must decide if their presence at work is required.

  • Employees with a relative falling into the category of vulnerable persons.

In Canada, if an employee is living with a person at risk, they must take proper measure themselves to prevent contamination. The work performance is not waved.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

In Canada, the government has taken special measure to maintain day care for essential service employees.

As for others, if work can be done from home, the work performance has to be provided. In all other cases, during confinement the work performance was not mandatory and each time a region is deconfined, schools and day care are made available.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

Yes, in Quebec, it is possible to lay off employees if the company does not have enough work to justify their presence. When the employees are laid off, they can take advantage of employment insurance or other measures implemented by the federal and/or provincial governments.  However, if the layoff is temporary (up to 6 months) during the said 6-month period, it is possible for the employer to recall their employees to work. If there still is not enough work during or upon 6 months, then the employee’s employment will be terminated and the employer will have to pay the employee’s severance indemnity.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

In Canada, the situation is governed differently in each province as it is under the provincial jurisdiction and not the federal jurisdiction. Therefore, the rules are quite different from one province to the other and from one kind of business to another.

The “Commission des normes, de l’équité, de la santé et de la sécurité du travail » CNESST is the Quebec Government organisation authorised to apply the rules in the workplace.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

In Canada both Federal and Provincial governments have set up many programs for businesses. The main program that must be mentioned is the federal Government of Canada is covering 75% of an employee’s wages – up to $847 per week – for eligible employers. To be eligible the employer must have a reduction of its revenues starting on March 15th2020, compared to March 2019 of 15% and afterward for the following month a reduction of 30%. The program will be in place until August 29.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

By law, an employer cannot force an employee to take their annual vacation unless they give at least four weeks’ notice. The employee has the right to know when their annual vacation is going to start four weeks in advance.

Main urgent texts related to COVID-19 in labour law:

Labour Program and federally regulated workplaces – COVID-19

https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour/notice-covid-19.html

Contact:

Daniel Roussin: droussin@avenslegal.ca

FRANCE

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

There is no difference between confinement and deconfinement: the employer remains obliged to pay the salaries.

Nonetheless, the State put in place a specific partial unemployment mechanism, according to which the employees are either working part-time or no longer working, but they will be paid up to 84% of their net wages for the unemployed hours – unless the employer agreed to pay more. The State will fully compensate those companies for paying the salaries for the unemployed hours, up to 4 times the legal minimum French salary.

Also, the government encouraged teleworking as far as possible, in order to reduce the recourse to the partial unemployment mechanism.

For sanitary reasons, the government continues to promote teleworking after the deconfinement, and the partial unemployment mechanism has also been maintained for the jobs which cannot be executed at home, for the companies which are in loss of business.

However, the government already declared that the conditions of indemnification by the State will be reviewed downwards by June 2020.

Accordingly:

  • Employee affected by COVID-19

In case of illness due to COVID-19, the general system of sick leave will apply. The social security will partially cover the salary. Many companies’ collective agreements offer to supplement this amount to achieve 100% of the salary during several months.

  • Employees quarantined but not sick

There are no quarantine regulations applicable to employees in France. The problem has to be treated case by case. Some companies decided to control their employees’ temperature. However, this issue is much-debated in France and remains controversial.

Anyway, it does not matter if the employee presents a risk to be contaminated, but is not yet known as sick; teleworking must be preferred whenever it is possible. If the job cannot be done at home, the employee should be integrated to the partial unemployment mechanism covering up 84% of the net salary, but that is not so clear for now, because that status of quarantine is not really clear.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

On the 5th May, the French government set up a list of vulnerable persons regarding COVID-19.

Once again, those people are encouraged to work from home. If it is not possible, they will be able to take sick leave (wages fully covered) or fall under the partial unemployment mechanism (84% of the net salary).

  • Employees with a relative falling into the category of vulnerable persons.

In order to help vulnerable relatives, employees will either fall under the partial unemployment mechanism or benefit from sick leaves.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Until the end of April, some parents benefited from a child care leave due to school closures. The social security paid a full salary to those parents.

From the 1st May onwards, those latter fall under the partial unemployment mechanism and then receive 84% of their net salary (unless there is an agreement with the employer who’ll pay more). This is applicable under some conditions: first, if the school is closed or unable to receive their child. Secondly, the children must be under 16. Finally, this is inapplicable when one of the parents can work from home.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

The general rules remain applicable during a health emergency. Personal redundancies are still possible provided that the dismissal is founded. In case the dismissal is judged as unfair, the maximum indemnity depends on seniority. Economic redundancies are still permitted, but labour courts will stay alert and careful about abuses. They will check whether those redundancies are justified or if they benefited from partial unemployment before dismissing. There is no doubt that there will be litigation on that matter to determine whether the partial unemployment mechanism was established for the purpose of avoiding economic dismissals.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

Companies are invited to allow and continue teleworking as far as possible. If not, the employer must take hygiene measures (clean the premises, provide safety masks, hydro-alcoholic gel etc.). Employers should as much as possible reorganize the workplace and all premises for their employees and clients to allow social distancing. They can permit their employees to adjust their hours to avoid overloading public transport.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

The State is compensating companies by paying all the salaries subjected to partial unemployment. Once again, economic redundancies are possible unless companies abuse the partial employment mechanism. Labour courts will also check whether the company used COVID-19 to fire its employees unfairly.  In case of a company’s renewal of the recourse to the partial unemployment mechanism, he company must make some commitments negotiated with the administration, for example a commitment to maintain employment.

Moreover, the French government is guarantying a loan to companies corresponding to 25% of their sales revenue. Lots of companies already benefited from it.

There are also specific legal measures allowing in certain conditions to postpone some payments (social charges, rents for little companies, loan payments…)

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

An employer can impose maximum 6 days of holidays and 10 days of leave. The company can therefore impose a maximum of 16 dates to its employees during the “Covid Period”.

The regulation related to working hours, which is very complex in France, will apply and depends on collective agreements. The hours can be extended, but provided that extended daily and weekly rest periods are respected.

Main urgent texts related to COVID-19 in labour law:

https://www.e-tlf.com/2020/05/25/mesures-relatives-a-la-lutte-contre-la-propagation-du-virus-covid-19-arrete-du-14-03-20/

https://travail-emploi.gouv.fr/le-ministere-en-action/coronavirus-covid-19

Contact:

Hortense de Saint Remy: hsaintremy@avens.fr 

ITALY


[as per Laws of Italy]

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

The general obligation incumbent on the employer must be necessarily coordinated with the current social “shock absorbers” made available by the Italian State (please refer to point 4 infra) and by the possibility of “imposing” unilaterally a holiday period (please refer to point 5 infra).

Accordingly:

  • Employee affected by COVID-19

Employees are considered on sick leave are paid by the Public Social Security Authority (INPS).

  • Employees quarantined but not sick

Where an employee is in quarantine for sickness or home isolation due to symptoms or for having been in contact with an infected person (all of which must be certified by a doctor), the absence from work will be considered as sick leave and will be paid by INPS. Sick leave for coronavirus does not count towards the calculation of the maximum period of sick leave to which employees are entitled.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

An employee who considers himself to fall into the category of “fragile worker” may:

  • contact the General Practitioner who, for his or her protection, can justify a period of “isolation”;
  • in cases where the GP does not prescribe (or cannot prescribe) the period of illness, the worker may contact the company’s Competent Doctor informing him/her of the situation and sending the clinical documentation (certifications issued by the treating physician and/or the reference specialist), thus conferring the consent to the subsequent actions that the Doctor will have to put in place for the protection of his/her health;
  • the Competent Doctor, after verifying the documentation produced by the employee and the congruence with the regulatory indications in force, communicates to the employer the request to adopt the most appropriate directives in order to comply with the recommendations laid down in Article 3 and the Measures hygiene and sanitation referred to in Annex 1 of the Prime Ministerial Decree 8/3/20. Considering the specificity of its organisation, the employer will be able to apply stronger measures to protect the health of the fragile worker through: (i) the use of smart working; (ii) the incentive of paid holidays/leave; (iii) the suspension of activities of company departments not essential to production (iv) the limitation of movements inside and/or outside the work site; (vi) the provision of adequate PPE and (vii) the restricted access to the common areas.
  • Employees with a relative falling into the category of vulnerable persons.

Some special paid leaves and a right/priority in the request for smart working are provided for those employees who have a relative affected by a serious disability or are immunodepressed.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Some special leaves and additional economic measures by the State have been provided.

According to the recent “Decreto Rilancio” enacted on 19 May 2020:

  • Leave for parents of children aged 12 years or less, compensated at 50% of the salary, is increased to 30 days available from 5 March to 31 July 2020;
  • the free leave, protected by the prohibition of dismissal, which was previously guaranteed to parents with children aged 12 to 16 years, is now applied to parents “with children under 16”, so it becomes usable also for parents of children not older than 12 years who have exhausted the 30 days referred to in the previous point;
  • babysitting vouchers paid by INPS have been provided also covering registration to summer centres and other supplementary services for children.

In addition, parents of a child under the age of 14 have a genuine right to smart working, provided that none of the parents is in receipt of unemployment benefit, on the sole condition that this is compatible with the duties to be performed.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

In Italy there is currently a statutory ban on individual dismissals (so called “giustificato motive oggettivo”) for economic reasons. This applies from 17 March 2020 until 17 August 2020. There are a few exceptions (e.g. dismissals for just cause). Collective redundancies are also prohibited for the same term, and if they were pending on 23 February 2020, are suspended.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

An employer is generally legally obliged to adopt all necessary measures to ensure the health and safety of its employees. Employers have a statutory “responsibility to protect workers from exposure to biohazard.”

In addition to the ordinary obligations already incumbent on the employer’s, specific additional measures have been introduced by the two Protocols enacted on 14 March 2020 and 24 April 2020 (and by the individual Regions). In particular, specific rules have been provided in terms of: (i) information obligations (e.g. delivery of information leaflets); (ii) specific ways of entering the company (e.g. body temperature measurement); (iii) access modalities of specific suppliers; (iv) cleaning and sanitation in the company; (iv) personal hygiene precautions (e.g. obligation to make hand cleanser dispensers available); (v) personal protective equipment (such as gloves, jumpsuit and glasses must be provided to employees who are unable to respect the safety distance of one meter in carrying out their tasks; (vi) management of common areas; (vii) employee entry and exit management; (viii) management of a symptomatic person in the company.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

Social ‘shock absorbers’ and financial aids have been implemented and may be provided for all companies regardless of their size or characteristics. Government wage support funds may be requested by employers in the event of a suspension or reduction of working activity with a simplified procedure and the State will cover 80% of the employees’ salary of the employees for the non-worked hours, subject to specific ceilings provided by INPS (Social Security).

Such measures are available in the following terms:

  • 9 weeks for the period from 23 February to 31 August 2020;
  • 5 additional weeks, again for the same period 23 February / 31 August, only for those who have made full use of the previously granted period of 9 weeks;
  • 4 additional weeks, for the period from 1 September to 31 October 2020.

As already specified above, there is a general ban on dismissal until 17 August 2020

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

The Italian Legislature since the beginning of the pandemic has constantly “recommended” to public and private employers to promote the taking periods of ordinary leave and leave of absence.

Such “recommendation” must, however, be coordinated with the provisions governing social “shock absorbers”.

According to the prevalent opinion, the employer, in the presence of phenomena of high accumulation of past holidays, may dispose, even unilaterally, the emptying of the cd. “meters”, leaving the employee the availability of only the holidays accrued during the year 2020. All of this must always be carried out in accordance with the NCBA.

In relation to a possible request to increase the employees’ ordinary working time, ordinary rules on overtime apply.

Main urgent texts related to COVID-19 in labour law:

  • Decree-Law No 18 of 17 March 2020 (so-called “Decreto Cura Italia);
  • Decree-Law No 23 of 8 April 2020 (so-called “Decreto Liquidità“);
  • Decree of the President of the Council of Ministers 26 April 2020,
  • Decree-Law No 34 of 19 May 2020 (so-called “Decreto Rilancio”)
  • Shared Protocol for regulating measures to counter and contain the spread of the Covid-19 virus in the workplace of 14 March 2020 as subsequently integrated by the one of 24 April 2020

Contact:

Lia Meroni: l.meroni@mmslex.com

Stefania Briganti: s.briganti@mmslex.com

MOROCCO

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

If the employee is infected by COVID-19, duly proved by a medical certificate, the employer is no longer obliged to pay his/her salary and the employee will receive sick compensation from the National Social Security Fund (Caisse Nationale de Sécurité Sociale), as well as from any other insurance company if the employer has put in place a complementary medical insurance scheme.

Accordingly:

  • Employee affected by COVID-19

Given that COVID-19 is considered to be an illness, motivating the employee’s absence, this situation, in view of Article 32 of the Labour Code, leads to the temporary suspension of the employment contract.

Regarding the compensation, the answer will be the same as for the illness or contamination of an employee prescribed by a medical certificate, as described above.

  • Employees quarantined but not sick

As a general rule, an employee is not entitled to self-isolate without the authorization of the employer, on condition that the latter has put in place, in the workplace, all the necessary measures to ensure and safeguard the safety and health of its employees.   

If the employee is unable to perform his functions (force majeure event), the employer can suspend the contract and stop paying the employee’s salary. In this case, the employee is entitled to receive compensation from the National Social Security Funds.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

See answer above

  • Employees with a relative falling into the category of vulnerable persons.

See answer above

  • Employees who can no longer perform their work due to school closures and the need for childcare.

If the employee is unable to perform his functions (for example in case of a force majeure event), the employer can suspend the contract and stop paying the employee’s salary. In this case, the employee is entitled to receive compensation from the National Social Security Funds.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

The reduction of the workforce is more difficult to apprehend in this context, but we assume that it will be possible by applying Articles 66 and following of the Labour Code relating to redundancies for structural or economic reasons. The Labour Code provides for a prior consultation of trade union representatives and involvement of the authorities.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

As Morocco has extended the lockdown until June 10, 2020, no mandatory measures have yet been taken for the return to work. So far, for sectors that continue to work, the Ministry of Health has merely published a note on preventive measures in the workplace, based on the WHO document “Getting your work place ready for COVID-19”.

When feasible, it is also recommended that the employer implements teleworking.

Please note that employers have a safety obligation towards their employees, in accordance with Article 24 of the Labour Code.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

A company impacted by the Covid-19 crisis is entitled to the following:

  • deferral of bank credits and leasing instalments until the end of June;
  • suspension of the payment of social security charges;
  • Etc.

Some compensation or aids would not be consistent with redundancies such as the suspension of the payment of social security charges.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

The possible options/adjustments are as follow:

Teleworking

Employers may implement teleworking when the nature of the work allows for it. In such case, the employer must ensure that:

  • The working conditions do not represent a danger for the employee’s health and safety; and
  • The insurance policy covering the employees against work accidents also covers their work from their homes.

Partial activity

Wages may be reduced as a result of a reduction in working time, in the event of temporary periodic crises.

In that respect, Labour Code provides that the employer may reduce the normal working hours for a continuous or uninterrupted period not exceeding 60 days per year, after consulting the employees’ representatives and, where appropriate, union representatives within the company, in the event of a temporary economic crisis affecting the company or involuntary exceptional circumstances.

In this case, the wage shall be paid for the actual working time and may under no circumstances be less than 50% of the normal wage.

If the reduction in normal working hours exceeds 60 days, the duration of such reduction must be agreed upon between the employer, the employees’ representatives and, where applicable, union representatives.

In the absence of agreement, the reduction of normal working hours may only be made with the authorization of the Governor in accordance with the procedure laid down in Article 67 of the Labour Code, which provides that such authorization may be granted within a maximum period of 2 months from the date of submission of the application by the employer to the provincial delegate in charge of labour.

Leave

  • Paid annual leave: Article 245 of the Labour Code allows the employer to set the dates of departure on paid leave after consultation with the employees’ representatives and, where appropriate, trade union representatives in the company. The employees concerned by the leave must be consulted. Hence, the employer may, in particular in view of the present circumstances, require the employees to take annual leave without any exposure if the afore-stated procedure is observed.
  • Unpaid leave: the employer and the employee may decide by mutual agreement to suspend the employment contract by means of unpaid leave.

Companies whose interest for the country is deemed to be important during this crisis may opt for an increase in working time, provided that employees receive compensation for overtime in addition to their wages.

The working time of each shift must not exceed eight continuous hours per day, except for a rest break of not more than one hour.

Main urgent texts related to COVID-19 in labour law:

Labour Code

Contact:

Mehdi Megzari: mehdi.megzari@dentons.com

PORTUGAL

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

In order not to be responsible for full salaries or part of the salaries, employers have to apply for the special support implemented by the Government for companies in financial crisis.

These are companies in proven crisis situation as a consequence of:

  1. Company or business activity complete stoppage resulting from intermittent or interruption of global supply chains;
  2. Abrupt or pronounced fall in turnover arising to at least 40% of volume of trade, on the 30 days prior to the request for support and in contrast to the average of the immediately preceding  two months or the equal period of last year;
  3. Businesses which have initiated activity less than 12 months to the date of disclosure of these measures.

Accordingly:

  • Employee affected by COVID-19

The general health system applies.

Employees are in sick leave and the salary is paid by social security from the first day of absence in a range of 55% up to 75% of the salary depending on the period of leave.

  • Employees quarantined but not sick

Whenever the quarantine is determined by the health public authority, social security supports 100% of employee basic remuneration for 14 days.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

Their absence to work whenever determined by a doctor is under the regime of justified absences.

Employer is not responsible for the payment of salaries, but the social security support is only applicable under the normal sick leave regime or prophylactic quarantine.

  • Employees with a relative falling into the category of vulnerable persons.

Absence is justified. No payment is secured.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Special rules for family support are in place up to May 31st.

2/3 of the remuneration is due to one of the parents and 50% of the reduced salary is paid by social security.

The support is not available if one of the parents can be in teleworking.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

Redundancy is only possible according to normal terms set by law.

Pandemic could be considered as a ground for redundancy.

Notwithstanding the above, the Government has implemented special measures targeting the suspension of labour contracts or reduction of time of work due to pandemic where redundancy of the targeted employees is forbidden for the period of implementation of the special measures and up to 60 days after termination.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

In general, the resumption of activity by companies must be done in compliance with hygiene and social distancing measures.

Up to May 31st teleworking is mandatory for the functions that can be executed in this way.

From June 1st teleworking is recommended as is also the adjustment of working hours to avoid both concentration of employees in the same place and overloading public transport.

These measures are part of the general obligation imposed to employers to protect employee’s health. In this context, taking the temperature at the entrance to the company is a measure which is permissible if employees are informed of the consequences of excessive temperature and provided that the measures taken are not retained.

In public transports, schools and to access any shop or public service, the use of mask is mandatory.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

Companies have to apply for the special support implemented for companies under financial crisis. Please refer to §1 above.

In the suspension of labour contracts, employees are entitled to an amount equal to 2/3 of the gross remuneration with a minimum amount of € 635,00 and maximum amount of €1905. 70% paid by the Social Security and 30% paid by the employer.

On reduction of working time, employer has to pay the effective time of work and extra support is only due if the reduced remuneration is not within the 2/3 of gross remuneration with the minimum and maximum limits mentioned above.

On resumption of activity, the company is eligible for a one time support equivalent of a minimum salary (€ 635,00) per employee targeted with the special regime.

Redundancy is forbidden whenever targeting employees whose salaries were supported by social security.

This prohibition is valid for the period of support and up to 60 days after its termination.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

General rule is that vacation period should be agreed between employer and employee.

In special situations the employer can impose vacations to be taken between May 1st and October 31st.

A reduction or suspension of activity due to pandemic could fall into this special situation.

Tourism activity is subject to special rules.

Main urgent texts related to COVID-19 in labour law:

Decree Law nr 10-G/2020, March 26.

Decree Law nr 14-F/2020, April 13

Resolution of the Government nr 10-A/2020, March 13

Ordinance nr. 71-A/2020, March 15

Contact:

Margarida Calixto: margarida.calixto@amsa.pt

SERBIA

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

In Serbia, it is same with COVID-19 as with any other disease. But the government has approved aid for all employers and employees in the amount of three minimum wages during the pandemic. That is practically the only difference in approach about COVID-19.

Accordingly:

  • Employee affected by COVID-19

In the case of an illness, the employer must pay for sick leave for one month and after that the Republic Fund for Health Insurance takes all the expenses. If a person is infected in work, then compensation is 100%; and if not, then 65% of salary.

  • Employees quarantined but not sick

The law says that the employee has the right to salary compensation in the amount determined by the general act and the employment contract during the interruption of work which was ordered by the competent state body or the competent body of the employer due to failure to ensure safety and protection of life and health at work, which is a condition of life and health of employees and other persons, and in other cases, in accordance with the law.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

Not regulated different for COVID-19, they have the same status as always. Except persons over 65 years old were banned from leaving their homes, so objectively they could not go to work. So they had a right to compensation for an amount determined by the general act and the employment contract during the interruption of work which was ordered by the competent state body.

  • Employees with a relative falling into the category of vulnerable persons.

These employees are not entitled to a salary, nor does social insurance intervene.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Not regulated.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

The employer can make dismissals the same as in regular times, but the dismissal will not be called health emergency or anything like that. It would probably be defined as “decline in economic activity or decline in productivity” and for such reasons the reduced need for work of some employees. The only sanction for such dismissals during pandemic is that the employer cannot get the government aid.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

At first the masks were obligatory, but now they are just recommended. Also, social distancing. Means of sanitizing must be provided. And work from home is recommended wherever is possible.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

As we said before, the main aid is three minimum salaries. Also, there is a possibility for tax deferral, and a beneficial loan with only 1% interest for one year. None of this is available if the employer has done redundancies.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

In Serbia, the employer has full autonomy on deciding when the employees will be using their holydays. Employees can ask to use their holydays on certain period, but the employer is not restricted by such requests. 

Main urgent texts related to COVID-19 in labour law:

Decree on measures during a state of emergency (The decree was published in “Sl. RS Gazette ” no. 31/2020, 36/2020, 38/2020, 39/2020, 43/2020, 47/2020, 49/2020, 53/2020, 56/2020, 57/2020, 58/2020 and 60/2020)

Decree on organizing the work of employers during a state of emergency (published in “Sl. RS Gazette ” no. 31/2020 of 16 March 2020.)

Contact:

Ivan Štulić: ivan.stulic@mlo.rs

SPAIN

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

In general, the answer is no. The duration of ERTEs (i.e. furloughing of contracts or reduction of working time) based on Force Majeure grounds can be extended, at most, until 30th June 2020. While the contract is suspended or working time reduced, employees get paid public unemployment benefits.

Accordingly:

  • Employee affected by COVID-19

Both the preventive isolation and infection of employees due to COVID-19 must be treated as a temporary incapacity for accidents at work, regardless of whether the employees are infected during the provision of services or outside working time. This implies that the affected employees will be entitled to the relevant Social Security sick leave benefits for occupational hazards (if they meet the required conditions), which involves a payment of 75% of the employee’s monthly base contribution (unless the applicable Collective Bargaining Agreement provides otherwise), which will be assumed by the Spanish Social Security.

  • Employees quarantined but not sick

As said above, employees who must quarantine but are not sick are entitled to get the same social security benefits as if they were affected by the virus. On the other hand, employers must arrange telework to all staff when it is possible, depending on the peculiarities of their activity.

Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

People who are vulnerable due to their age, who are pregnant or suffer from underlying medical conditions who, if necessary, may contact their doctor to justify their need for isolation and who, should this be the case, will be considered, for employment purposes, to be in a situation similar to a work-related accident for the economic provision of temporary disability.

  • Employees with a relative falling into the category of vulnerable persons.

During the state of alarm (extended until 7th June 2020), employees who must take care of dependent family members have the right to adapt their working conditions and/or reduce working hours under specific circumstances due to COVID-19.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Employers will not pay salaries. The employees may request the employer to adapt their working conditions and/or reduce working hours.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

Temporary mass redundancy procedures (“ERTE”): exceptional measures in relation to the procedures of suspension of employment contracts and/or reduction of working hours due to force majeure cause (i.e. business impossibility derived from the measures adopted by the government, lack of supplies that seriously impede the development of the Company’s activity and infection of any of the employees or if any of them are in quarantine). The duration of ERTEs based on force majeure grounds can be extended, at most, until 30th June 2020. These extraordinary measures will be subject to the commitment of the company to maintain employment for a period of six months from the date business resumes.

If Companies cannot justify these measures based on force majeure causes, they must implement the process based on economical, technical, organisational and productive causes. Extinction of contracts or dismissals based on technical, organizational and production causes covered by the Temporary Redundancy Procedures is prohibited during the state of alarm.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

On 4 March 2020, the Spanish Ministry for Employment published a practical guide in relation to implications of COVID-19. This guide does not establish specific obligations in relation to COVID-19, but includes recommendations based on mandatory regulations regarding the prevention of occupational hazards and Spanish law. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees and clients. Measures may consist of:

  • Promote remote or teleworking.
  • Replace physical meetings.
  • Flexible hours.
  • Hygiene management.
  • Voluntary paid leave.
  • Collective layoffs.

Specific protocols are being implemented in different activity sectors (airports, hotels, etc.).

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

Compatible with ERTES:

  • Tax debt payment deferral (6 months): a tax relief for small and medium businesses (SMEs) and self-employed persons, whose turnover is below 6.010.121,04 euros in 2019 as well as self-employed professionals. Debts amounting between 100 and 30,000 euros arising from tax returns whose filing deadline expires between March 2nd and May 30th 2020.
  • Government guarantees: This backing can be up to 80% of the loans and renewals made to SMEs and self-employed workers; for the rest of the companies, 70% of the loans and 60% on renewals. For the hotel sector and for touristic related facilities, the backing would be of 50% of any credit facility.
  • Social Security measures:
  1. Bonuses adapted during the months of May and June 2020 for companies that partially recover their activity.
  2. Payment of debts to the Social Security by companies and self-employed workers may be deferred with a 0.5% interest if they were due to be paid between April and June 2020 –provided that the individual had no other postponement in force.
  3. In the case of suspension of employment contracts or reduction of working hours due to force majeure, the Social Security will exempt those companies who have less than 50 employees from the payment of the Company’s contributions. For those companies that have 50 or more employees, the Social Security will exonerate 75% of the Company’s contributions to the Social Security during this period. Lower exemptions are maintained until the 30th of June for companies resuming their activity.
  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

Employer cannot impose holidays or leave dates on its employees. However, there was a so-called “recoverable paid leave” (“permiso retribuido recuperable”) for people who work in non-essential services between the 27th of March and the 9th of April. Workers can be required to recover the hours lost from the day following the end of the state of emergency until 31 December 2020. Such special leave cannot affect neither rest time nor holidays. Companies that have an obligation to apply the recoverable paid leave may, if necessary, establish a minimum staffing level or shifts that are strictly vital to continue essential work.

Main urgent texts related to COVID-19 in labour law:

  • Royal Decree-Law 8/2020, 17th March, on exceptional urgent measures to deal with the economic and social impact of Covid-19.
  • Royal Decree-Law 9/2020, 27th March, which adopts additional measures, in employment, to alleviate the effects derived from Covid-19.
  • Royal Decree-Law 10/2020, which establishes a recoverable paid leave between the 27 of March and the 9th of April.
  • Royal Decree-Law 18/2020, 12th May, on social measures in defence of employment.

Contact:

Domingo Delgado: ddelgado@conley.es

SWITZERLAND

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

The most recent doctrine considers that the pandemic we are experiencing does not fall within the scope of the entrepreneurial risks that must be assumed by the employer. It follows that, in general, the employer is not obliged to pay the salaries of employees who are prevented from providing their work due to the measures ordered by the Federal Council.

Accordingly:

  • Employee affected by COVID-19

In the case of an illness, the general system applies, with the employee having to pay salary or compensation for loss of earnings due to illness.

  • Employees quarantined but not sick

The employer has no obligation to pay the salary. Social insurance takes over. If teleworking is possible, it must be done. If the employee does not, he has no social security coverage either.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

The Swiss Government has expressly provided for this category that they are entitled to paid leave if they cannot be at work and if the employer cannot guarantee social distancing measures. In Switzerland, the list of diseases defining the vulnerable person is exhaustive and is based on the current state of knowledge.

  • Employees with a relative falling into the category of vulnerable persons

These employees should not be entitled to a salary, nor should social insurance intervene.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

There is no obligation to pay wages. However, social insurance does come into play, as there is a legal obligation to look after one’s children until the age of 12. The employer must pay the salary only for the first 3 days of absence, after which the social insurance intervenes (allowance for loss of earnings).

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

The general rules of Swiss law apply during a health emergency. Thus, dismissals for misconduct, economic redundancies, collective redundancies remain possible, even if the company has also benefited from partial unemployment benefits. On the other hand, a dismissal due to the fact that a person cannot work in connection with the COVID-19 will be considered as an abusive dismissal which would allow the dismissed employee to benefit not from a reinstatement, but from an indemnity of a maximum of 6 months of salary.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the manager must take to ensure the safety of its clients and employees?

In general, the resumption of activity by companies must be done in compliance with hygiene and social distancing measures. Businesses are invited (recommendation) to allow teleworking as far as possible and to adjust working hours to avoid overloading public transport.

These measures are part of the general obligation to protect the health of its employees. In this context, taking the temperature at the entrance to the company is a measure which is permissible if employees are informed of the consequences of excessive temperature and provided that the measures taken are not retained.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short-time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

The main types of aid are as follows:

  1. Short time working (RHT) provided that the reduction in work within the company represents at least 10% of the hours normally worked. Employees then receive 80% of the salary for the hours not worked.
  2. Allowances for loss of earnings. These allowances are granted to employees who are placed in quarantine (maximum 10 days of loss of earnings allowances), as well as to employees who have to take care of children under the age of 12 and for whom teleworking is not possible, until the end of the measures taken by the Government to combat the Coronavirus. The maximum amount of the allowance for loss of earnings is CHF 196 per day.
  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

The answer to this question is not unanimous. According to an influential part of the doctrine, holidays that were set before the epidemic must be maintained, since the employee cannot claim that his or her rest is not ideal because of the confinement. With respect to vacation arrears from the previous year, the employer may require them to be taken. Regarding the year’s vacation, the employer may impose them, provided that the interests and wishes of the employees are also considered. If the employee refuses, the employer will have to establish the need for the employee to take his or her vacation during the period of the health emergency.

This is in accordance with the general principle that holidays should be determined by a decision of the employer which, as far as possible, takes into account the employee’s wishes, which are outweighed by the needs of the company (329 c CO).

Main urgent texts related to COVID-19 in labour law :

https://www.legalis.ch/fr/covid-19-updates/#collapse-8-4280

SR 818.101.24 Ordinance 2 on Measures to Combat Coronaviruses (COVID-19) (Ordinance 2 COVID-19)

SR 830.31 Ordinance on Measures in the Event of Loss of Earnings in Connection with Coronavirus (COVID-19) (Ordinance on Loss of Earnings COVID-19)

SR 837.033 Ordinance on Measures in the Field of Unemployment Insurance in Connection with Coronavirus (COVID-19)

Contact:

Christian Bettex: c.bettex@rusconi-avocats.ch

TURKEY

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

In the event that the employer decides to temporarily close down the business it is its own initiative, in order to prevent the spread of the CoronaVirus, the burden of paying wages to employees still continues.

In the event that the workplace is temporarily closed down by the public authorities upon an administrative decision, ½ salary is paid to the employee within one week of this period, and the employer’s burden of paying the wage disappears by the end of the week.

Accordingly:

  • Employee affected by COVID-19

The employer has no obligation to pay wages during the days when employees are off duty due to covid-19. Temporary incapacity allowance is paid to employees who meet the criteria set by the Social Security Institution.

  • Employees quarantined but not sick

If working from home is considered possible, the employer’s burden of paying wages still continues. Otherwise, employees taking medical reports due to quarantine are paid incapacity allowance by the social security institution.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

As these employees have been prohibited by law from going out as of the curfew declared on March, 21st, the employer’s burden of to paying wages continues if working from home is considered possible. Otherwise, the employer is obliged to pay half a wage for only the first week for these employees who cannot go to work.

  • Employees with a relative falling into the category of vulnerable persons.

If working from home is possible, the obligation to pay wages continues; otherwise, if these workers do not come to work, the employer is not burdened with any obligation to pay wages, and the social security institution does not support them either. In case of meeting the conditions, short-time working allowance, unpaid leave and cash wage support may be brought to the agenda for them.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

If working from home is possible, the obligation to pay wages continues; otherwise, if these workers do not come to work, the employer is not burdened with any obligation to pay wages, and the social security institution does not support them either. In case of meeting the conditions, short-time working allowance, unpaid leave and cash wage support may be brought to the agenda for them.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

Employment contracts cannot be terminated by the employer for a period of 3 months starting from 17.04.2020, except for situations that do not comply with the rules of ethics and goodwill and similar reasons.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

At the entrance to the workplace, all employees’ fever should be measured. Decisions such as the provision of disinfectants, their positioning, the follow-up of hygiene rules, and the supply of masks should be taken immediately. It would of great significance for the occupational physicians to supervise all employees and to make the diagnosis and detection of viruses increasing the health care checks and periodic examinations that should be performed within certain periods in line with the scope of the related legislation. The distance between employees should be maintained at least 1.5 meters. Meetings should be carried out over digital platforms and attention should be paid to the personnel  obliged to travel to countries or cities at risk of virus by ensuring that they follow the 14-day rule before they return to their workplaces.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

In the workplace where short-term work allowance plan is implemented, 60% of the daily average gross earning is calculated by Turkish Employment Agency for employees who meet their working time and premium payment terms, based on their earnings based on the last 12 months of premium. The amount of short-time working allowance calculated in this way cannot exceed 150% of the gross amount of the monthly minimum wage. In order to benefit from short-term work that is effective in the workplace, the employer should not be dismissed by the employer for any reason other than not complying with the ethics and goodwill rules.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

During the termination prohibition period, the employer may stand the employees entirely or partially down. The consent of the worker is not sought for this. Being on unpaid leave does not grant the employee the right to terminate his contract based on a justified reason. Employers who give  paid leave for their employees during the epidemic hazard or who significantly reduce their working time can make compensatory work for 4 months in the workplace after the danger passes. For this, the employer’s wages should not be deducted by employer due to the low or no working time of the workers, and the legal rights of the workers for the period to be compensated must be paid in full.

Main urgent texts related to COVID-19 in labour law:

The Law on Reducing the Economic and Social Effects of New Coronavirus (COVID-19) and Amendment of Certain Laws(No.7244)

Law on the Amendment of Some Laws(No.7226)

Procedures and Principles Regarding the Implementation of the Cash Fee Support Under the Temporary Article 24 of the Unemployment Insurance(No.4447)

Contact:

Aydın Buğra İLTER: a.ilter@ita-law.com

UNITED ARAB EMIRATES


[As per Laws of United Arab Emirates]

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

Employers are always responsible to pay employees’ salary in the UAE as per UAE Labor law, and delay in salary could block the company in ministry’s system and penalties could be imposed accordingly. However, recently due to COVID-19 situation, MOHRE has issued a ministerial resolution no. 279 of 2020, which is applicable for the companies registered with MOHRE (non-freezone companies) and only for employees who are not citizens of UAE (non-Emiratis). As per resolution, employer can consider employee for a paid annual leave, OR with the consent of employee, unpaid leave and reduce salary temporarily OR permanently. Temporary reduction requires to attach a temporary addendum to the existing contract, while permanent reduction requires to apply for modification of contract subject to approval from the MOHRE. [ref: https://u.ae/en/information-and-services/justice-safety-and-the-law/handling-the-covid-19-outbreak/supporting-the-labour-market-in-the-private-sector-in-times-of-covid19/regulating-employer-employee-relationship-in-the-private-sector ]

Accordingly:

  • Employee affected by COVID-19

If employee is sick and affected by COVID-19, UAE labour law allows 90 days of sick leave (provided that three months have been past after probation period). First 15 days paid in full, following 30 days paid in half, and remaining 45 days without pay. Therefore, both parties can utilize this option. [ref: https://u.ae/en/information-and-services/jobs/types-of-leaves-and-entitlements-in-the-private-sector/sick-leave ]

  • Employees quarantined but not sick

As per ministerial resolution no. 279 of 2020, employees are allowed to work remotely. Therefore, employers can ask employee to work from home so that the salary could be justified.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

For vulnerable employees, employer has the option to let them work remotely from home. [as per ministerial resolution no. 279 of 2020]

  • Employees with a relative falling into the category of vulnerable persons.

Same as above, employer has the option to let them work remotely from home. [as per ministerial resolution no. 279 of 2020]

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Employer can utilize the option of paid annual leave, after that, with the consent of employee, employer can grant unpaid leave or can also use the option of redundancy as per ministerial resolution no. 279 of 2020.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

Currently UAE Labour law does not have redundancy option, however during this special period, redundancy is temporarily allowed as per ministerial resolution no. 279 of 2020.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

There are guidelines provided by the authorities in UAE (Economic dept, Health authority, Municipality etc.) which are required to be followed by the businesses accordingly. For example, keeping distance from each other, allowing 30% workforce, wearing masks, gloves, checking temperature at the entrance etc. Each business sector has also specific guidelines to following depending upon their business activity.

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

Currently there is no aid or compensation announced for companies who suffered due to COVID-19, however, immigration authorities, banks, freezones and other authorities/departments in the UAE have come up with some kind of offers/relief packages, which give incentives such as waiving penalties/late charges, discounts on renewal of licenses, discounts on setting up new companies etc. (which are also temporary and time limited due to COVID-19 situation). Therefore, companies may save some money from these offered packages.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

As discussed above, ministerial resolution no. 279 of 2020 allows employers to send employee on a paid leave OR unpaid leave with the consent of employee. UAE labour law allows employees to work 8 hours per day and additional working hours could be considered as overtime subject to terms of contract and nature of the activity/job of employee.

Main urgent texts related to COVID-19 in labour law:

https://u.ae/en/information-and-services/justice-safety-and-the-law/handling-the-covid-19-outbreak/supporting-the-labour-market-in-the-private-sector-in-times-of-covid19/regulating-employer-employee-relationship-in-the-private-sector

Contact:

Eric Alksibati : legal@hmlc.ae

UNITED KINGDOM

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

In the UK the employer is generally required to meet an employee’s salary while that person is an employee. This continues to apply during the COVID- 19 pandemic. However, Government support has been made available through the Coronavirus Job Retention Scheme (called furlough). It is intended to help businesses cope with the downturn in business and enable them to retain employees who might otherwise be made redundant.  The scheme allows the employer to recover a proportion of pay as a non repayable grant in respect of employees from the date an employee is put on furlough leave. This is limited (to the lower of 80% of wage costs or £2,500 per calendar month). This is expected to remain in place until October 2020. Furloughed employees stay at home and cannot work for the employer while furloughed and a person must be furloughed for a minimum of 21 days to be eligible.

Accordingly:

  • Employee affected by COVID-19

In the case of sick employees, they can claim statutory sick pay (SSP)   (and enhanced sick pay where the employer operates a company sick pay scheme  for its employees). SSP rates are low: £94.25 per week before 6 April 2020 and now £95.85 per week. They may be entitled to other benefits. The   employee must be absent from work due to illness to be able to claim SSP.  An employee off sick or returning from sick leave can be furloughed.

  • Employees quarantined but not sick

An employee is entitled to claim SSP where they are self-isolating (those with symptoms or living with someone with symptoms), unless they can work from home or are furloughed.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

Clinically vulnerable people are advised to stay at home as much as possible and to minimise contact outside of their household (called shielding). Clinically vulnerable people are:

  • Individuals aged 70 and over (regardless of medical conditions).
  • Women who are pregnant.
  • Individuals aged under 70 with certain underlying health conditions.

Unless they or a member of their household have COVID symptoms, clinically vulnerable employees will not be entitled to SSP if they are unable to work remotely. The alternative is for employers is to continue to pay the employees, or to place the employee on furlough in appropriate circumstances. An employer who decides not to pay them or to dismiss them due to their absence may risk a discrimination or unfair dismissal claim. 

Employees who are considered to be “clinically extremely vulnerable” and who have been notified  by the national health service to follow shielding measures rigorously are deemed to be incapable of work for the purposes of SSP and can claim SSP  if they cannot work from home.

  • Employees with a relative falling into the category of vulnerable persons.

These employees do not need to shield unless the vulnerable person has symptoms. Unless furloughed or working from home they should attend work or may be eligible for state benefits.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

Unless furloughed or they can work from home they may claim for the state benefit universal credit where eligible.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”

Yes, provided that the normal redundancy rules are followed although the furlough scheme is intended to support business to reduce redundancy risk.

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

Employers have a duty to ensure the health, safety and wellbeing of all staff, customers, and anyone else who visits the workplace. In the context of COVID this may include:

  • Encouraging staff to work from home where possible.
  • Completing a risk assessment and taking reasonable steps to prevent harm in the workplace
  • Following government working safely guidance. This comprises  general guidance and workplace-specific guidance on aspects such as working from home: individuals should work from home, if they can, and “all reasonable steps” should be taken by employers to enable individuals to work from home. People who cannot work from home should now return to the work place.
  • Social distancing of two metres should be maintained in workplaces wherever possible. Employers should re-design workspaces to maintain this level of social distancing. Where social distancing of two metres cannot be maintained in a workplace, employers should manage the transmission risk of COVID.
  • Cleaning processes should be reinforced.
  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

It is for the individual business to decide whether redundancies are necessary but, unless there are particular restrictions in the available financial support arrangements, a business may proceed with redundancies in accordance with usual employment laws. The main types of aid available are:

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

Businesses may now permit the carry-over of up to 4 weeks untaken leave where it was not reasonably practicable to take it in the leave year as a result of the effects of the COVID on the worker, the employer, the wider economy or society.

Guidance has been issued to employers on the factors to be considered in assessing whether it is reasonably practicable to take the leave in the relevant leave year.

Employers may exercise their normal right to require workers to take leave on certain dates where it is reasonably practicable for the worker to take their leave. However, the terms of an employee’s contract of employment are relevant to establish whether the employer may require this.

Main urgent texts related to COVID-19 in labour law:

Guidance: Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme:

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

Guidance: Check if your employer can use the Coronavirus Job Retention Scheme

https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme#history

Guidance: Work out 80% of your employees’ wages to claim through the Coronavirus Job Retention Scheme:

https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme

Coronavirus Job Retention Scheme calculator

https://www.tax.service.gov.uk/job-retention-scheme-calculator/?_ga=2.16357174.1291120991.1587371920-778629040.1580374300

Acas: Coronavirus: advice for employers and employees

https://www.acas.org.uk/coronavirus/using-holiday

EHRC: Coronavirus (COVID-19) guidance for employers (EHRC

https://www.equalityhumanrights.com/en/advice-and-guidance/coronavirus-covid-19-guidance-employers

Guidance, Holiday entitlement and pay during coronavirus (COVID-19)

https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19?utm_source=458b84c0-5181-43ea-9d13-fd803529f23d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

COVID-19: support for businesses guidance

https://www.gov.uk/government/collections/financial-support-for-businesses-during-coronavirus-covid-19#support-for-businesses-through-the-coronavirus-job-retention-scheme

Working safely

Our plan to rebuild: The UK Government’s COVID-19 recovery strategy

https://www.gov.uk/government/publications/our-plan-to-rebuild-the-uk-governments-covid-19-recovery-strategy

Contact:

Jane Mckee: jmk@blackgraf.com

Andrew Wheldon: aw@blackgraf.com

UNITED STATES OF AMERICA

  1. At a time when most countries are entering or preparing for the deconfinement phase, should the employer be responsible for paying an employee’s salary?

United States federal law and the law of each state generally follow the employment at-will doctrine.  Absent a written contract to the contrary, an employer is generally free to terminate an employee for any reason or no reason, subject to anti-discrimination and other statutory protections.  If, however, the employer chooses not to terminate an employee, the employer must continue to pay the employee even if he or she is working remotely or has less work because of the pandemic.

Accordingly:

  • Employee affected by COVID-19

An employer cannot terminate, discipline, or otherwise discriminate against an employee simply because he or she has an actual or presumptive case of COVID-19.  It is possible that COVID-19 is a disability under the federal Americans with Disabilities Act (ADA), meaning an employer must provide reasonable accommodations allowing the employee to perform his or her job.

  • Employees quarantined but not sick

An employer is obligated to pay an employee working remotely during a quarantine period.

  • Vulnerable persons (65 years and over, hypertension, diabetes, autoimmune disease or cancer).

An employer is obligated to pay such vulnerable employees working remotely during a quarantine period.  If an employee asks to work from home because he or she is in a high-risk category as defined by the Center for Disease Control, the law is currently unsettled about whether the employer is required to grant that request.

  • Employees with a relative falling into the category of vulnerable persons.

Same as for vulnerable persons.

  • Employees who can no longer perform their work due to school closures and the need for childcare.

The federal Families First Coronavirus Response Act expands the coverage of the federal Family and Medical Leave Act (FMLA) for companies with fewer than 500 employees to allow up to 12 weeks of partially-paid job-protected FMLA leave to be used for employees who are unable to work or telework because they need to care for a child whose school or place of care has been closed or whose childcare provider is unavailable, due to coronavirus. The first 10 days of such leave is unpaid, but will likely be covered by another federal law, the Emergency Paid Sick Leave Act. After 10 days, an employer must provide paid leave to employees for the balance of their up to 12 total weeks of leave at an amount not less than two-thirds of the employee’s regular rate of pay based upon the number of hours the employee would normally be expected to work. However, employers are not required to pay more than $200 per day and $10,000 in the aggregate.

  1. In your country, can the company make redundancies during this special period, often referred to as a “health emergency”?

The employment at-will doctrine continues to apply.  As noted in response No. 1 above, an employer is generally free to terminate an employee for any reason or no reason.  There has been no special COVID-19 statute changing or suspending that principle.  Terminated employees may collect state government unemployment compensation, and the amount and length of such benefits have been temporarily increased. 

  1. When a company that has partially or completely ceased its activity is put back into operation, what are the main measures that the employer must take to ensure the safety of its clients and employees?

These measures are largely being imposed by state and local governments and vary from place to place.  Generally, they require or encourage social distancing and mask-wearing.  Information issued by the  federal Occupational Safety and Health Administration can be found at https://www.osha.gov/SLTC/covid-19/standards.html

  1. What are the main aid and compensation to which the company is entitled, for example in the event of short time working or “loss of earnings” compensation? And in the event of obtaining this aid, could the company nevertheless proceed with redundancies (economic, collective)?

The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act includes loans administered by the federal Small Business Administration (Paycheck Protection Program) designed to provide a direct incentive for small businesses (fewer than 500 employees) to keep their workers on the payroll.  SBA will forgive loans if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities.  An employer who obtains a PPP loan may nevertheless terminate employees, but the loan amount forgiven by the lender will be consequently reduced.

The CARES Act includes a much smaller loan program–an advance of up to $10,000 (“Economic Injury Disaster Loan”)—to small businesses that are currently experiencing a temporary loss of revenue. This loan advance will not have to be repaid.

The CARES Act also includes a tax credit to incentivize employers of all sizes that face closure orders or suffer economic hardship due to COVID-19 to keep employees on the payroll.  It is a 50% credit on up to $10,000 of wages paid or incurred from March 13, 2020 through December 31, 2020.

  1. During this period, can the employer impose holidays or leave dates on its employees? What room for manoeuvre does it have if it wishes to increase its employees’ working time during a given period?

Generally, employers retain their rights to decrease working days and hours and to reduce compensation to employees.  Likewise, employers may require additional hours, but are subject to federal overtime laws (federal Fair Labor Standards Act) that require enhanced hourly rates (1.5 times regular rate) for work in excess of 40 hours per week, as well as state overtime laws that in some instances are more generous to employees.

Main urgent texts related to COVID-19 in labour law:

Families First Coronavirus Response Act

Emergency Family and Medical Leave Expansion Act

Emergency Paid Sick Leave Act

Coronavirus Aid, Relief, and Economic Security (CARES) Act

Contact:

T. Christopher Donnelly: tcd@dclaw.com