Pandemic COVID-19: One, First, Decalogue for a Business’s Operation and Its Employment Relations
I. PREAMBLE
1. The Pandemic
WHO has already declared infection COVID-19, caused by Coronavirus-2019 SARS-CoV-2, as a pandemic, from 11.3.2020. WHO provides constantly updated information and instructions on the subject.
The danger of our country’s health system collapsing is still visible. The prospect of finding hundreds of dead (corresponding to what we have unfortunately observed in Wuhan or continue to observe in the Italian north) has not yet been ruled out.
Let’s hear the wake-up calls. Those that are structured and composed. Τhat of MIT professor Konstantinos Daskalakis and (his related text, available in Greek), in my opinion, stands out.
2. The Legislative Acts As of 11.3.30 onwards
The Greek government has taken a series of measures to tackle this pandemic. As time progresses, the measures become more and more austere. This proved necessary as we did not act diligently. We did note even show responsibility.
Among the measures taken is the Legislative Decree of 11.3.2020 (Government Gazette A 55 / 11.3.2020) – Emergency measures to address the negative consequences of the occurrence of COVID-19 coronavirus and the need to limit its spread. Also the Legislative Decree of 14.3.2020 (Government Gazette A 64 / 14.3.2020) – Emergency measures to address the need to limit the spread of COVID-19 coronavirus.
3. SARS-CoV-2 Coronavirus And Employment Relations
The Ministry of Labor (among others):
(a) Has provided workplace guidance and prevention measures regarding the new Coronavirus-2019 SARS-CoV-2
(b) By document No. 94243/09.03.2020, it refers to the obligations of undertakings and employees, in relevance with the COVID-19 infection caused by the SARS-CoV-2 coronavirus
(c) In its circular no. 12339/404 of 12.3.2020, it specifies the preventive measures to be taken by undertakings in accordance with Article 4 of its provisions of the 11.3.20 Legislative Decree.
4. Crisis Management (?)
Managing this issue requires a composed approach and structured decisions. The duration of the pandemic is by no means invisible.
On the contrary, the effects on the Greek and world economy are visible.
The effects on businesses, employees and employment relations are also visible. The whole population of the country is already affected. Without exception
Sober approaches are necessary. And even more necessary are sober decisions.
Knee-jerk reactions would, inevitably, have extremely adverse consequences.
And as far as businesses are concerned: Immediate and dramatic.
Information is required.
We will endeavor, in the light of the above, to make our own contribution to the (necessary) information. Concerning, in particular, employment relations in the light of COVID-19 infection caused by the SARS-CoV-2 coronavirus.
II. TEN, Critical, QUESTIONS
Question 1: What Is a “Special Purpose Leave” And What Are The Conditions Under Which It Is Granted?
The Legislative Decree of 11.3.2020 establishes the possibility for employees who are parents to use the “special purpose leave”. This leave can be obtained from 11.3.2020 to 10.4.2020 (with the, unfortunately not small, possibility to extend this exceptional measure).
There are two prerequisites for employees to be granted this leave:
(a) employees must be the parents of a child/of children attending compulsory education (or enrolled in nursery schools/kindergartens – but not in high school) or in special schools or special education units irrespective of the age limit of the children concerned; and
(b) employees must meet the statutory requirements for being entitled to at least six (6) days of annual regular leave when working six day weeks and five (5) days when working five day weeks (that is, working for approximately 3 months in the business).
The “burden” of this leave is shared (not equally) between three parties, that is the employer, the employee and the State.
Specifically: The leave is paid. The costs are covered by 2/3 by the employer and 1/3 by the regular state budget. In particular, the first two days are paid by the employer and the third by the ordinary State budget. The employee is obliged for every three (3) days of special purpose leave to use one (1) day of their normal leave (in an effort to prevent the abuse the measure).
If both parents are employed, they must notify their employers (or their joint employer) which one of them will make use of this special purpose leave. They must also notify if they intend to ‘share’ this leave between each other. In the event of divorce or separation of the parents, the special purpose leave is obtained by the parent who has custody of the child (unless the parents agree otherwise with a joint official declaration). If only one parent is working, he / she can only use the leave in exceptional cases (disabled, organization for welfare benefits and social solidarity, etc.).
It is noted, however, that according to the Legislative Decree of 14.3.2020:
concerning, in particular, the granting of the special purpose leave referred to above, to parents who work in companies or businesses in the energy and water sector and must operate to provide the country with uninterrupted power, gas, liquefied petroleum and water supplies to businesses / employers producing, transporting and supplying foods, fuels, medicines and paramedics to stores / businesses selling related items, a reasoned decision by the competent management body of the company is required.
The employer is obligated to report to “ERGANI” its employees who used this leave from 10.4.2020 to 15.4.2020.
Question 2: Can Employers Unilaterally Impose “Telework” on Employees of Their Business?
Yes.
(It should be noted that teleworking is a form of flexible work. This institution is extremely interesting. This is also evident from our own research for our article on teleworking article. And under these circumstances, it is not only interesting but also extremely useful…)
Employers, by virtue of the Decree of 11.3.2020, can unilaterally decide that some of their employees will telework.. Initially until 10.4.2020.
The imposition of this measure seems simple – at a first glance.
It is important to note, however, that the employer’s liability for an accident at work is not waived in the case of teleworking.
In this context, it is necessary that the employee provides a statement on the security of their work from (their) home. The relevant “Declaration” document should be signed by the employee and submitted to the employer.
But what happens when an employee applies for telework?
Both the application and its justification should be assessed by the employer. It will be accepted if the relevant conditions are met. Among them: (a) if teleworking is possible in this case and (b) if the request is assessed as ‘reasonable’.
Question 3: Can the Employer Compel the Employee to Receive Their Regular Leave Or Put Them (Mandatorily) On Unpaid Leave?
No.
This possibility is not provided for in Greek law.
Question 4: Can an Employee Decide on Their Own That They Will Not Go To Work Because They Are Afraid Of Getting The Virus?
No.
The employee cannot decide on their own that they will not fo to work in this case, as their absence will be considered unjustified. Specific conditions are evaluated on a case-by-case basis.
Question 5: What Should an Employer Do If an Employee Is Presenting Symptoms of COVID-19?
Let us first note that the employer is obliged (Articles 662 CC and 42 Law 3850/2010) to ensure the health and safety of employees.
It is possible that an employee (or the persons associated with him / her) may develop symptoms of the above infection – which, according to the National Public Health Organization guidelines, make it imperative that they stay at home. If the employee discloses these data to their employer, the employer is obliged to accept the employee’s abstention from their work duties. It is imperative, in any case, not to endanger the health of employees and their relatives).
During the employee’s stay at home (at least for 14 days which is the time of incubation of the virus, as far as we, today, know) the employer has to pay their full salary. The obligation to pay a salary does not exist when the company has suspended (in whole or in part) its activity because of a public authority order to counter the transmission of COVID-19.
The employer is, of course, entitled to examine on a case-by-case basis each of the relevant requests made to them.
It should also be noted that if the employee is diagnosed with SARS-CoV-2 (or quarantined following a medical order), the sick leave provisions will also apply.
Question 6: What Should an Employer Do for Pregnant Employees? For Employees Who Are In Vulnerable Groups?
The employer is obliged, in the same context under section 5, to require employees who are in vulnerable groups (as these groups are defined by the National Public Health Organization) to remain at home ,while (the employer is) paying their salaries.
Question 7: What Are Other, Basic or Not, Employer Obligations?
The employer is obliged to ensure the health and safety of employees. Measures to prevent the spread of the disease in the workplace are also in this context. The employer must also protect the health of employees by informing them and making available to them all the necessary materials and means for this purpose.
- The Employer’s Basic Obligations, In A Nutshell, Are:
(a) To update the Occupational Risk Assessment taking into account the risk assessment and prevention and protection measures against coronavirus.
(b) Informing employees on the risk of coronavirus infection and on preventive and protective measures, in accordance with the National Public Health Organization guidelines.
(c) Employee consultation and encouragement for proposals.
(d) Taking environmental and personal hygiene measures, such as regular ventilation of workplaces, maintenance of ventilation – air – conditioning systems and cleaning of surfaces, appliances, etc., in accordance with the National Public Health Organization guidelines.
(e) Provision of appropriate personal protective equipment (PPE) and supervision of their proper use.
- Among the Employer’s Other Obligations, we glean:
(a) The provision to employees with the necessary hand washing materials, such as disposable soap and towels – where washbasins are available. Also alcoholic antiseptic in public areas – such as lounges, corridors and restrooms).
(b) Ensuring regular disinfection with antiseptic solution of work surfaces (eg cabinets or desks) or objects (eg knobs, telephones, keyboards, elevator surfaces, etc.) that come with frequent contact with employees or the public.
(c) Ensuring and maintaining adequate ventilation of workplaces with natural or artificial fresh air circulation
(d) The information on the latest data on preventive measures in collaboration with the Occupational Physician (where applicable). Also: taking into account the National Public Health Organization’s available, at any given time, information.
(e) Employers-companies which have been imposed or have been subject to the measure of temporary closure by order of a public authority are required to submit an official declaration to the ERGANI Information System of the Ministry of Labor and Social Affairs stating that their business is subject to a temporary closure. This is in order to collect employee data for the operation of the Special Employee Support Mechanism introduced by the Legislative Decree of 14.3.2020. The relevant Ministerial Decision is expected to clarify the relevant procedure and operation of the mechanism.
- In addition:
If an employee is required to travel abroad, the employer must consider the benefits and risks before making the decision. (Especially when the destination is an area where the SARS-CoV-2 Coronavirus has manifested.
Finally, given the stress this situation may cause to an employee, the employer should take care of the mental health of each employee presenting the relevant symptoms (short leave, psychological support).
Question 8: Which Employer Obligations Are Suspended Regarding Employees’ Working Hours?
The Legislative Decree of 11.3.2020 suspended the obligation of employers to register with “ERGANI” any modification of the working hours or the organization of working time (thereby also varying the hours of attendance and departure per employee). Also “overwork” and legal overtime. Indicative: modification of start or end of hours, change of rest day, change of daily shift, personalized change of time of attendance etc.-Forms: E4 Supplementary Hours, E8 Announcement of Overwork or Legal Overtime, E12 e-build.
The recording of any change for the foregoing shall take place in a cumulative and inventory manner within the first ten days of the month following the month in which they occur.
Subsequently, by the Legislative Decree of 14.3.2020, it was decided that for the time being there still is an immediate risk of the occurrence and spread of COVID-19 coronavirus,
(a) employer-businesses which have exhausted the statutory overtime ceilings of their employees may employ them overtime without the approval of the Minister of Labor and Social Affairs. Such overtime may not exceed the maximum daily working hours provided for in the relevant provisions; and
(b) a derogation from the provisions of Decree 748/1966 (concerning the prohibition of operation on Sundays and public holidays) the operation of undertakings that produce, transport and supply food, fuel, medicines and paramedical materials to shops / businesses selling related items is allowed. In any case, the relevant protective provisions of labor law concerning the time limits of the employees must be respected.
Question 9: Are Employers’ Obligations to Pay Amounts Due To The State And To Insurance Organizations Suspended?
According to the Legislative Decree of 11.3.2020, companies affected by the occurrence and dissemination of Coronavirus-2019 SARS-CoV-2, may be granted an extension for the payment and a suspension of the collection of debts that have been certified by VAT declarations and/or debts certified by a Public Financial Service and/or insurance contributions (and related arrangements).
No interest or surcharge shall be payable on the amounts due during the extension of the deadline for payment and suspension of collection.
The necessary Ministerial Decisions clarifying the application of the specific provisions of the above Legislative Decree (definition of affected enterprises by sector and region, extension period, etc.) are expected.
Question 10: What Measures Can/Should Employers Take to Address the Financial Situation Caused by The New Data?
The pandemic COVID-19 is affecting both global and national economies. And of course the vast majority of Greek businesses. Businesses that were severely affected by the long economic crisis that our country was experiencing.
We have already mentioned the need for crisis management.
Crisis management cannot be implemented by law (much less: “by one law and one article” – as we have learned in the recent past). Nor, of course, in a unified way for all businesses.
Each of the businesses should closely monitor the development of the situation and adjust accordingly.
What matters, of course, is human life, health and safety. Immediately after: The survival of the business. In order to achieve the latter, measures will have to be taken – possibly a combination of them.
According to the needs.
Depending on the data.
Depending on the evolution of the phenomenon.
Our legislation already provides for more options and tools. Each business will utilize them, according to their needs.
The entrepreneur is called upon to make the right decisions in the light of the needs and financial circumstances of their business. The end goal will, in any case, be the survival of the business. And obviously ensuring the largest possible number of (if not all) jobs.
Let the redundancies be the last step the employer will take. Much more collective redundancies (under the provisions of the law).
Until then, they can take advantage of other, intermediate, measures – mentioned in our recent articles. Indicatively:
(a) the conversion from full-time to part-time employment contracts
(b) the agreement (or enforcement) of rotational work
(c) the agreement (or enforcement) agreement of suspension
III. In conclusion
The impact of the pandemic seems unpredictable.
The State must keep an eye on developments. Most importantly: it must continue to redefine the measures needed to protect public health and the economy. Also: it must be determined to ensure their implementation.
And so do the businesses.
Compliance with the National Public Health Organization Guidelines is a key priority.
Following: the selection of appropriate measures to ensure the safety and health of employees.
Finally, the adoption, where appropriate, the propper options offered in order to ensure the continuity and survival of the business.
With sobriety.
Stavros Koumentakis
Senior Partner
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.