31.05.2021 11:10
Please find below general information on the implications for labour relations of measures adopted in connection with the current coronavirus COVID-19 epidemic
1. My employee is in government-imposed compulsory quarantine (compulsory quarantine)
This is an obstacle to work on the employee’s part; for the first 14 days of the quarantine, the employee is entitled to receive from the employer for lost working hours/normal working days compensatory wage or salary amounting to 60% of his/her average earnings, reduced according to the rules set out in Section 192(2) of the Labour Code. The employer may decide to increase the compensation up to the amount of average wages. From the 15th day of the compulsory quarantine, the employee shall receive sickness benefits under his/her sickness insurance.
!!! Please note !!! Quarantine excludes the exercise of the insured activity (i.e. the employment giving rise to the sickness insurance of the employee from which sickness benefits are subsequently paid to the employee); the law does not recognize the concurrence of maintaining compulsory quarantine and working from home, i.e. home office. According to the instructions of the National Security Council, in practical application, an agreement between the employer and the employee should precede the physician’s decision to order quarantine.
If the employee is in compulsory quarantine abroad:
a) In an EU member country and in countries with bilateral arrangements – the employee must apply for an ordered quarantine certificate at the place of his/her stay and send it to his/her employer in the Czech Republic; further steps are the same as if the employee is placed under compulsory quarantine in the Czech Republic, i.e. the employee is entitled to compensatory wage or salary pursuant to the provisions of Section 192 of the Labour Code.
b) Outside an EU member country and countries with bilateral arrangements – the employer is obliged to justify the employee’s absence from work. The employee’s absence from work shall not qualify as a breach of the employee’s obligations through the fault of the employee under the Labour Code, as he/she is obliged to observe the ordered quarantine abroad.
(c) Quarantine of an employee while on a business trip – quarantine ordered to an employee on foreign business trip is not a reason to terminate or interrupt the trip. The employee who has been ordered quarantine must, to the extent possible, immediately inform his/her employer of any changes in the conditions governing the payment and amount of reimbursement of travel expenses pursuant to Section 186 of the Labour Code. Regarding meal allowances (including foreign meal allowances) – these are tied to the duration of the business trip and the time spent outside the Czech Republic per calendar day. Meal allowances can only be reduced if the quarantined employee receives free meals as part of the quarantine regime (e.g. in a hospital). If the quarantined employee is not placed in a special facility, the employer is obliged to also arrange accommodation for the employee. The reimbursement of necessary subsidiary expenses arising from the existing situation and in connection with the business trip, not with the performance of work (Section 164 of the Labour Code), must always be assessed in the context of the circumstances of each particular case.
2. I want to quarantine my employee(s) or an employee has applied for voluntary quarantine (voluntary quarantine)
(A) (A) The employer may enter into an agreement with the employee pursuant to Section 317 of the Labour Code, i.e. agreement on work performed outside the employer’s workplace within the working hours organized and scheduled by the employee, or an agreement outside the scope of Section 317 of the Labour Code on work performed outside the employer’s workplace within the hours determined by the employer.
!!! Please note !!! These agreements have certain specific features. We recommend seeking professional legal advice if you want to make such agreements.
(B) Voluntary quarantine order – this is essentially a notification of obstacles to work on the employer’s part pursuant to Section 208 of the Labour Code. The employee is entitled to compensatory wage amounting to 100% of his/her average earnings ascertained pursuant to Section 351 et seq. of the Labour Code.
!!! Please note !!!Although no particular form of notification is required, we would recommend a written form or at least an electronic mail.
(C) Ordering paid leave – two aspects need to be mentioned. First of all, unless agreed otherwise between the employee and the employer, the employer has the right to direct the employee, on the basis of a 14-day advance written notice, to take paid leave. Upon agreement, the above statutory period may be reduced; a general agreement to this effect is sometimes included directly in the employment contract. When ordering paid leave, the employer must give consideration to the employee’s interests and take into account the annual leave plan. Failure to do so may constitute an offense pursuant to the Labour Inspection Act.
!!! Please note !!! Failure to adhere to either the legal (or agreed) period or the legal (written) form in ordering paid leave shall render the legal act invalid. In such case, the employee shall not take leave, as long as he/she raises the above irregularities. If, for the given period, the employee is not assigned work, this shall be considered an obstacle to work on the part of the employer pursuant to Section 208 of the Labour Code and the employee shall be entitled to compensatory wage amounting to 100% of his/her average earnings.
3. . Due to the spread of COVID-19, the demand for the employer’s products or services has dropped; as a result, the employer does not have work for the employee in the extent agreed in the employment contract.
Partial unemployment (temporary layoff) – The employer has the right to use this concept, if the employer is unable to allocate work to the employee in the extent of the agreed working hours (e.g. 40 hours/week) due to an unforeseen drop in sales or demand for the employer’s products or services. It is one of the obstacles to work on the employer’s part pursuant to Section 209 of the Labour Code.
!!! Please note !!! Where a trade union organization is active at the employer’s, the above concept shall only be used in cooperation with the trade union organization. The law foresees an agreement between the employer and the trade union organization stipulating the amount of compensatory wages to be provided to employees in the period of temporary layoff (the minimum amount is 60% of average earnings). If there is no active trade union organization, the amount of compensatory wages to be provided to employees in the period of temporary layoff shall be determined by an internal policy. This approach has its specifics, we would therefore recommend seeking professional legal advice if you want to use it.
4. The employee takes or wants to take paid leave
If an employee’s leave began before the employee was ordered quarantine, the ordered quarantine shall not interrupt the leave (Section 219(1) of the Labour Code), irrespective of whether the employee spends the leave in the Czech Republic or abroad. An obstacle to work due to the quarantine will follow only after the expiry of the leave.
The situation gets complicated if an employee taking his/her paid leave wants to deliberately travel to a location that may be considered an epidemiologic risk zone and, consequently, his/her presence at the workplace may need to be eliminated in order to protect other employees. With respect to the current skiing season, an employee will most likely apply for one-week holiday in, e.g., Austria. In such case, the following basic rule applies: the time of leave taking shall be determined by the employer (Section 217(1) of the Labour Code). Thus, under the current emergency situation, four different scenarios could be accepted: (i) the employer will reject the employee’s request to take leave; or (ii) the employer will approve the employee’s leave at the time requested, but will order taking leave for another two weeks, i.e. a three-week leave in total. In this case, unless an agreement is reached between the employer and the employee on the terms and conditions governing the leave, the formal requirements of determining the time of leave taking must be respected – the leave must be ordered in writing at least 14 days in advance; or (iii) if the one-week leave has already been approved, the employer shall be entitled to recall the employee from the leave; or (iv) if the 14-day notification period could not be otherwise observed, the employer could change the time of taking the leave; in the latter two cases, however, an obligation shall always arise to compensate the employee for any costs already incurred (Section 217(3) of the Labour Code).
!!! Please note !!! Failure to adhere to either the legal (or agreed) period or the legal (written) form in ordering paid leave shall render the very legal act invalid. In such case, the employee shall not take leave, as long as the irregularities are raised by the employee. If, for the given period, the employee is not assigned work, this shall be considered an obstacle to work on the part of the employer pursuant to Section 208 of the Labour Code and the employee shall be entitled to compensatory wage amounting to 100% of his/her average earnings. Should the employer decide to follow one of the above procedures, we definitely recommend seeking professional legal advice.
5. Personal protective equipment
Employers are obliged to provide personal protective equipment, detergents and disinfectants to their employees in the cases stipulated by law. The legislation primarily focuses on work with hazardous materials or work where clothes are exposed to excessive staining, etc. No specific rules are stipulated for situations such as the coronavirus epidemic – no specific personal protective equipment and other aids have been prescribed.
Yet reference can be made to the general obligation of employers to create safe working environment for their employees that does not endanger their health and to minimize any risks to the life and health of employees by all available means and measures within their capabilities. The general legal provisions referred to above imply the employer’s obligation (if feasible) to ensure protective equipment and to implement the necessary sanitary measures in connection with the coronavirus epidemic, as well as an obligation to adopt organizational and other technical measures to reduce the risk of infection (for example, to limit direct communication and contact with people entering the workplace, restrict face-to-face meetings with business partners, etc.). It is advisable to take into account the instructions and recommendations issued by the public health protection authorities, particularly the Ministry of Health.