The second wave of the pandemic is, unfortunately, in progress. The numbers of (spotted) coronavirus vectors are increasing rapidly and on a daily basis. The coordinated management of the whole issue from the part of the Stateis necessary. Business and labor relations are areas in which the State is once again focusing its attention. Providing work with physical presence can only aggravate the already problematic situation. Teleworking was used as a means of stopping the first wave of the Covid-19 Pandemic. It is already used as a means of stopping the second wave. More enhanced though. The Legislative Decree of 22.8.2020 (Government Gazette A ‘161 / 22.8.20) gives us the relevant position, focusing on the protection of vulnerable groups.
Teleworking as a flexible form of employment and a means of management of the pandemic
On the basis of the introductory data, we could only be particularly and extensively looking into teleworking.
Initially as an institution and on the occasion of the 11.3.20 Legislative Decree. In this context, we did look into the individual forms of teleworking, its advantages and disadvantages, the regulatory framework at European and national level. We were also concerned with teleworking and personal data. We were lastly concerned with the past, present and future of teleworking.
Teleworking is one of the most flexible forms of employment. As such it is to be further developed and further consolidated. We will know its further development, in any case, with the arrangement of the working time, to which, inevitably, we will be led. As long as we unhook ourselves from the shortcomings of the past, regarding the already obsolete eight-hour employment.
In our aforementioned article on the past, present and future of telework we referred to the then (until 31.3.20) developments. We specifically mentioned that: “The German Minister of Labor, positively evaluating the results of telework during the pandemic, stated that he is already working towards the institution of a (unilateral) right to employees to provide their services by telework. This, in fact, regardless of any pandemic! “.
This information seemed impressive at the time. We logically expected similar developments in our country. A relevant press release of the Ministry of Labor inclined us towards the drafting and submission of a bill for telework in our country. But developments are marching ahead. The rapid growth of the confirmed carriers of Covid-19 acts as their accelerator.
However, we see elements of the relevant legislation expected in Autumn, infiltrating the aforementioned-recent Legislative Decree of 22.8.2020. Let’s approach the relevant provisions.
Teleworking in the light of the Legislative Decree of 11.3.2020
The provision of article 4 par. 2 a of the Legislative Decree of 11.3.20 [(A’ 55), ratified by article 2 of law 4682/2020 (A’ 76)], provided:
“The employer may by its decision determine that the work provided by the employee at the place of work provided by the individual contract, will be carried out by the system of distance work.”
On the occasion of the commentary of this specific Legislative Decree, we were concerned, among other things, with the following question:
“But what happens when the employee submits (independently-regardless of the position adopted by his employer) a request for distance work”?
Based on the existing, then, institutional framework, our answer to this question could not be different:
“Both the specific request and the supporting document should be freely evaluated (as there is no relevant legal provision) by the employer. It will be accepted as long as the relevant conditions are met. These include: (a) teleworking is possible in the specific case and (b) the request is assessed as “reasonable”. And, ultimately, as long as the employer has no (any) other objections.”
But things are already changing.
Teleworking and vulnerable groups in the light of the Legislative Decree of 22.8.2020
Question 1: Does the employer still have the right to impose telework?
Answer: The employer (still) reserves the right to impose the system of distance work until 30.9.20. The provision, in other words, of the agreed work by telework (instead of the physical presence of the employee at the agreed place of work) (article 4 par. 2.a of the Legislative Decree of 11.3.2020-as already in force after its amendment by the Legislative Decree of 22.8.20).
Question 2: Are employees entitled to claim / enforce teleworking?
Answer: Employees (in general) have the right to ask, but not to impose telework.
However, employees belonging to vulnerable groups have the right to apply to their employer for teleworking. This request can be made “by any appropriate means, such as by telephone, e-mail or text message on a mobile phone” (article 4 par. 2.b of 11.3.2020 Legislative Decree).
Question 3: Are employers obliged to accept the telework that their employees request?
Answer: In order to answer this question, we need to make a differentiation – depending on the category to which each employee belongs:
(a) Employees who do not belong to vulnerable groups
A request for teleworking coming from an employee of the specific category is freely evaluated by their employer – according to what is currently in force. It is accepted, indicatively, if: (a) teleworking is possible in the specific case, (b) the request is assessed as “reasonable” and, finally, (c) if the employer has no (any) other objection.
(b) Employees belonging to vulnerable groups
The employer must, in principle, accept the request for teleworking of an employee belonging to vulnerable groups. Under a specific condition: That it is possible for the work to be provided remotely (article 4 par. 2.c of from 11.3.2020 Legislative Decree).
Question 4: Who will evaluate the possibility (or not) of the work to be provided remotely?
Answer: This assessment cannot be left to the employee. It obviously is the right of the employer.
Question 5: What happens when the applicant employee belongs to vulnerable groups and teleworking is not possible?
Answer: In this case, “the employer takes measures so that the applicant employee who belongs to a vulnerable group does not provide work for the performance of which they come in contact with the public” (article 4 par. 2.d of 11.3.2020 Legislative Decree).
But what are the jobs with which an employee comes into contact with the public? It would be simple, for example, to accept that there is “contact with the public” for a bank cashier. Also, for a saleswoman in a department store. But is it the same with an office worker where a client or associate will be present, at most, on a daily basis?
No rule is established. Each case should be evaluated independently. The evaluation is to be made, here as well-of course-, by the employer.
Question 6: What happens when the applicant employee belongs to a vulnerable group and it is not possible to provide their work by teleworking or by (physical) work without contact with the public?
Answer: When (cumulatively) the conditions of the specific question are met, the employer has the right to suspend, unilaterally, the employment contract of the (belonging to a vulnerable group) employee. This suspension, based on the specific Legislative Decree, can extend up to 30.9.20 (article 4 par. 2.e of the 11.3.2020 Legislative Decree). We will consider it as a logical assumption that, since work will not be provided, no salary will be due (at least based on what this Legislative Decree stipulates).
Question 7: What are the “vulnerable groups” and what medical certificates prove that the applicant employee belongs to them?
Answer: This Legislative Decree does not address this issue. It refers to the Common Ministerial Order to be issued by the Ministers of Labor and Social Affairs and Health (article 4 par. 2.f of the 11.3.2020 Legislative Decree).
Pending…
Question 8: What about the implementation details not tackled by this Legislative Decree?
Answer: We expect, in this case as well, for a relevant CMO to be issued by the Ministers of Labor and Social Affairs and Health. The specific CMO will concern the details of implementation of this Legislative Decree.
Corresponding CMO will be able to extend the time of its application beyond 30.9.20. Depending, of course, on the evolution of the pandemic in our country (article 4 par. 2.f of the 11.3.2020 Legislative Decree).
Question 9: What if, nevertheless, the employer does not comply with their obligations?
Answer: This Legislative Decree imposes very specific obligations on the employer in the event that an employee has notified and proven that they belong to vulnerable groups.
If the employer is indifferent to the (according to the specific Legislative Decree) management of the whole issue, a significant administrative penalty is provided. Specifically: “a fine of five thousand euros (5,000 €) for each violation”. (article 4 par. 2.g of the 11.3.2020 Legislative Decree). It should be noted here that the specific administrative sanction does not exhaust any relevant obligations of the employer acting illegally.
Time flows (rather) torturously in relation to the pandemic.
The number of (reported) coronavirus vectors sets a daily record.
The number of our fellow citizens in the ICU is not decreasing.
Teleworking has proven to be a means of managing the multifaceted (and not just health) crisis.
The State has adopted (with the Legislative Decree of 22.8.20) another series of relevant measures. It is guided by the convenience, health and life of vulnerable groups. And, of course, the operation of business and the economy.
Strict sanctions accompany its implementation.
But let the fear of sanctions not be the reason for the compliance.
Individual, social and business responsibility is really worth prevailing….
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in NAFTEMPORIKI Newspaper (August 28, 2020), MAKEDONIA Newspaper (August 30, 2020). You may also listen to a radio interview in north98.
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.