The issue of the (current) pandemic concerns everyone. But more so what concerns us is the risks we run – we all, after all, would like to reduce them. Teleworking is a step towards exactly that. This particular topic (of teleworking) has occupied us repeatedly (in our articles as well). Most recently, on the occasion of the Legislative Decree of 22.8.2020 (Government Gazette A ‘161 / 22.8.20) – [ratified by article 2 of law 4722/2020 (A’ 177) and supplemented by article 21], which attempted to manage the issue of . However, this Legislative Decree was not complete: it neither identified the vulnerable groups, nor was it accompanied by a relevant Ministerial Order. It referred to a future CMO to be issued by the Ministers of Labor & Social Affairs and Health. It took two (2) whole months and two CMOs to clarify, to some extent, the issue.
The agitation that it, meanwhile, created in businesses and employees was (unnecessarily) great.
Employees vs Businesses
Had employees have the choice they would all choose, probably without exception, teleworking. But not all businesses would. Businesses that do not adopt it as an option in general, receive heaps of requests from employees for the exceptional(?) approval of teleworking (“for them only”). The reasons put forward are, basically, of a medical nature. Sometimes they concern the employees themselves or their relatives. Sometimes they are a manifestation of the desire of employees to reduce their exposure to the risk of contracting the (sometimes deadly) virus. Moving with public transportation, moreover, raises reasonable concerns. The long coexistence with more (colleagues) does so too. Both the invoked reasons and relevant concerns are respected.
But what is legally provided for? When is it mandatory for employees to request to telework? And when is it not?
Let us try to decipher the relevant institutional framework.
Question 1: Which employees belong to vulnerable groups?
The employees who belong to the category of vulnerable groups are identified in the provision of article 1 of the CMO No. 37095/1436 [of the Ministers of Labor & Social Affairs and Health (Government Gazette B ‘4011 / 18.9.20)]. They are divided into two major categories: High and Intermediate Risk (Article 1.1). Detailed determination of the content of the specific categories as well as the relevant case study also takes place in the specific provision.
It is noteworthy that “when an individual meets more than one criteria of the intermediate risk category, then they are automatically considered to belong to the High Risk group” (Article 1.2 37095/1436 CMO and Article 1 last paragraph of CMO No. 39363/1537 CMO [ of the Ministers of Labor & Social Affairs and Health (Government Gazette B ‘4262 / 30.9.20)]).
Question 2: Who certifies and how the inclusion of an employee in a category of vulnerable groups?
It is not enough for the employee to assure their employer that they belong to a specific category of vulnerable groups. Relevant certification is required. This certification takes place with a reasoned opinion of the doctor of a relevant specialty. The consulting physician can be either the therapist or a third “(public or private) Healthcare Facility for cases of special therapies such as chemotherapy, radiotherapy and immunotherapy”.
However, it is important to note that in this opinion “the employee’s affiliation” to one of the aforementioned categories of high or intermediate risk should be precisely mentioned (article 2, 39363/1537 CMO). It is not enough to simply report the employee’s illness.
Question 3: What right is recognized to employees belonging to vulnerable “High Risk” groups?
Employees belonging to High Risk groups have the right to (request to) provide their work with the system of distance work (article 2.A.1 of 39363/1537 CMO). However, this is a right, not an obligation of the employee who belongs to the specific group.
Therefore: an employee belonging to a High Risk group may exercise (or not exercise) his / her specific right. But even if they choose to not exercise it, the employer is not released from any obligation (ref.: 12th Question).
Question 4: How does the employee inform the employer that they belong to a High Risk group and require applies for distance work?
The employee’s request is forwarded “in a timely manner to the employer, by any appropriate means, such as telephone, e-mail or text message of a mobile phone” (article 2.A.2 of 39363/1537 CMO).
However, it is not enough to submit the employee’s request to their employer. It is required to provide “within a reasonable time… a relevant medical certificate”. (article 2.A.3 of 39363/1537 CMO). This is, in essence, the opinion of their inclusion in the High Risk category -above 2nd Question).
Question 5: What are the obligations of the employer regarding the employees who belong to a High Risk group?
The nature of the work of the employee belonging to a High Risk group determines their ability (or not) to work remotely.
If teleworking is possible, “the employer must accept the employee’s request” (article 2.A.4 of 39363/1537 CMO). In this case, the employee will continue, through teleworking, to provide their services to the employer.
Question 6: What happens when teleworking of an employee belonging to a High Risk group proves impossible?
Teleworking of an employee belonging to a High Risk group may prove impossible (because, for example, the employee provides manual labor). In this case “the employer must take measures so that the applicant employee belonging to a vulnerable group does not provide work for the execution of which they come in contact with the public”. (however, other employees in the same business are not considered as public).
The employer is further obliged to “…consider, depending on the needs of the business, the possibility of temporary employment of the applicant employee in another job, in order to ensure the protection of their health”. On the other hand, “the employee must accept the… proposal of the employer, unless are unable to do so for a significant and serious reason.” The specific reason should be “… reported in writing to their employer”. (article 2.A.5 of 39363/1537 CMO).
Question 7: Under what conditions (and for how long) is the employment contract of an employee belonging to a High Risk group suspended?
Teleworking of an employee belonging to a High Risk group may prove impossible. It is also possible that the business’s efforts to employ them “in another job, in order to ensure the protection of their health” will be fruitless. In this case, the employer informs, in writing, the specific employee “for the reasons of inability to implement them and suspends their employment contract” (article 2.A.6 of 39363/1537 CMO).
The employer has this right regardless of the NACE Revision 2 classification of their business activity. This suspension may not extend beyond 31.12.20 (article 3 of 39363/1537 CMO).
Question 8: Do employees who belong to a High Risk group receive a salary or compensation and their contracts are suspended?
These employees (belonging to a High Risk group and whose employment contracts are suspended) are not required to provide their work to the business in which they work. Nor is their employer, logically, obliged to pay them a salary. To the extent that these employees are not bound by a contract of employment with another employer, they are entitled to special purpose remuneration (Article 4§1 of 39363/1537 CMO).
Question 9: What is the amount and what is the treatment of the special purpose remuneration?
The special purpose remuneration “…is calculated per month in proportion to the days during which the employment contract of the above employees is suspended, based on the calculation of the amount of… 534.00 euros corresponding to thirty (30) calendar days”. The specific employees “…are provided with full insurance coverage on their nominal salary, for the days when the employment contract is suspended” (article 4§2 of 39363/1537 CMO).
Special purpose remuneration “… is tax-free, non-transferable and cannot be confiscated … it shall not be subject to any withholding tax, fee or levy, including the special solidarity levy…, cannot be siezed and offset by certified debts to the tax administration and the State in general, municipalities, districts, insurance funds or credit institutions” (article 4§3 of 39363/1537 CMO).
Question 10: What is the procedure for receiving special purpose remuneration?
The payment of the special purpose remuneration presupposes the submission and registration of relevant statements related to the issue to the ERGANI platform by both the employers and the employees (article 5 of 39363/1537 CMO).
Question 11: What is the treatment of employees belonging to Intermediate Risk groups?
The employer who is notified of the employee’s inclusion in an Intermediate Risk group, is initially obliged to investigate the possibility of teleworking. In case this is not possible, the employee is temporarily employed in a job in which they do not come in contact with the public (article 2.B of 39363/1537 CMO).
In any case: there is no issue of suspension of the employment contract of an employee who belongs to an Intermediate Risk group.
Question 12: What are the General Protection Measures that the business should take anyway?
An employee belonging to a vulnerable group (whether High or Intermediate Risk) is entitled to exercise (or not) their right to work remotely or to provide their services away from the public.
However, the employer is obliged, in any case, “to take increased protection measures, based on the occupational risk assessment, as well as to fully implement the legislation on health and safety at work”. They are also obliged to comply with the more specific provisions “governing issues of implementation of public health measures, such as social distancing and using a mask, in workplaces, by sector and place of economic activity” (Article 2.C of 39363/1537 CMO).
The (of great significance) additional importance and value of the occupational risk assessment should be stressed at this point. This assessment proves, once again, extremely important. Even more so, the alignment of all businesses with it.
Question 13: What is the duration of these measures?
The period of validity of the specific, aforementioned, measures extends until 31.12.20 (article 6 of 39363/1537 CMO).
All the measures taken since the beginning of the pandemic had / have aimed to ensure the protection of life and health.
The Joint Ministerial Orders that define the meaning of the vulnerable groups but also the treatment of the employees that are part of them, move in the specific direction. They adequately aim to secure the specific goods (: of life and health) of the employees.
But they are also aiming for something more important: crystalizing the balance between the reasonable needs of employees who belong to vulnerable groups and those of the businesses that employ those employees.
They achieve it, to a sufficient degree.-
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 11, 2020).
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.