Coronavirus employment law update

1. What is the Belgian Government's response to protecting workers as a result of the coronavirus outbreak? 

As of Wednesday, March 18, 2020, the legislator has taken some measures to protect citizens, such as closing certain businesses like bars, cafes, restaurants, discotheques and non-food shops, banning all cultural and sport-related activities and regulating other specific activities. In essence, the legislator has divided the private sector into business and activities which are essential and those which are not essential (the list can be found in the Ministerial Decrees - MD's). For essential businesses, the employer must, to the extent possible, make use of home-teleworking and must make sure the employees who come to work are protected to the utmost on the work floor, including by introducing social distancing measures. For non-essential businesses, (i) a specific  mandatory home-teleworking regime has been put in place for all job functions where it is possible; for job functions where (ii) home-teleworking is impossible, strict social distancing measures have been enacted (minimum 1.5m between each person). Companies labelled as non-essential where neither home-teleworking, nor social distancing measures are possible (iii) must close. These measures will remain applicable until April 19, 2020 (with the possibility of further extension).
 
Following the new regulations, all contractual workers whose contract is totally or partially suspended because of these decisions can be granted temporary unemployment allowances for ‘force majeure’ or 'resulting from economic reasons' until April 5, 2020. (Although some measures have been extended beyond April 5 – at present until April 19 – the extension of these measures has not yet been enacted at the moment this article was published, but we can expect that they are going to be extended too.)
 
Examples of 'force majeure' are workers whose contract is suspended because their employer stopped activities due to the general closure measures (e.g. they were suppliers of those industries) or because their activity depended on external suppliers which stopped their activities because of the COVID-19 crisis; these workers are eligible for temporary unemployment allowances. Also, workers who are quarantined by foreign authorities or whose flight back to Belgium is cancelled because of the pandemic are entitled to temporary allowances for ‘force majeure’.
 
In addition, an employer who, due to a significant drop in their turnover, production, customer base or orders due to the coronavirus, is temporarily unable to offer work to their employees may, under certain conditions, take advantage of the system of 'temporary unemployment for economic reasons'.
 
However, the National Unemployment Office (RVA/ONEM) states that even if the lack of work is due to economic circumstances and not to 'force majeure', it is advisable to introduce the request on the basis of the simplified (new) scheme for temporary unemployment due to 'force majeure' (FAQ RVA/ONEM – March 27, 2020). Of course, the lack of work must be related to the COVID-19 crisis.
 
The procedure of requesting temporary unemployment allowances has been simplified (electronic only), and the amount of all allowances for 'force majeure' has been raised from 65% to 70% of the salary, capped at €2,794 gross per month, until June 30, 2020. As such, employees receive a daily gross allowance between €55.59 (minimum) and €74.17 (maximum). Employees who are made temporarily unemployed due to 'force majeure' (reason 'coronavirus') will also receive a supplement of €5.63 gross per day, payable by the National Unemployment Office, in addition to the unemployment benefit.
 
Furthermore, the government also made some decisions to help companies in need. The social security authorities for salaried workers (NSSO) will grant payment delays to employers facing financial difficulties related to the crisis. These payment plans cover the first and second quarter of 2020. This measure is subject to a special request towards the NSSO.
 
Certain support measures were also set up for self-employed workers who are experiencing financial difficulties as a result of the crisis (most of them are subject to a special request and to certain conditions):

• The deferral of the payment of social security contributions and the waiving of surcharges;
• Reduction of provisional social security contributions;
• Exemption from social security contributions;
• Self-employed workers who find it necessary to interrupt or stop work because of the COVID-19 crisis will be able to stop the payment of social security contributions, while retaining a number of rights.

 

2. Is an employer allowed/obliged to pay a supplement to the unemployment benefits?

Under the regime of temporary unemployment due to 'force majeure', there is currently no legal obligation to pay a supplement to the unemployment benefit. However, the employer is free to grant such a supplement voluntarily, provided that they do not discriminate between employees.
 
Under the regime of temporary unemployment for economic reasons, the employer is in some scenarios obliged to pay a supplement on top of the unemployment benefit for each day not worked. The amount is either provided for in a sectoral collective bargaining agreement (CBA) or, failing this, in a company CBA/company agreement.
 
In its most recent interim administrative instructions (dated March 20, 2020), the NSSO confirmed that the  supplement mentioned above, regardless of whether it concerns a situation of economic unemployment or 'force majeure', is exempted from social security contributions. However, the NSSO emphasized the following condition: the sum of the unemployment benefits and the supplement to be paid by the employer may not result in the employee receiving a net amount higher than the amount (s)he would receive by working normally.
Please note that a supplement to the unemployment benefits will be taxed at the normal tax rates and withholding tax rates, i.e. the same as applicable to the regular income. Moreover, this additional supplement will be added up with the other taxable professional income to determine the final tax.
 
 

3. What considerations should employers take into account when allowing employees to work from home?

Structural and occasional teleworking is regulated by Belgian law. The employer and the employee must agree on several matters, such as the moments of availability of the teleworking employee, the technical material made available by the employer to the employee, as well as possible reimbursement of costs.
 
The Ministerial Decree of March 18, 2020 introduces the concept of ‘home-teleworking’, which is a concept of compulsory telework that technically did not yet exist in Belgian law. The current regulation introducing home-teleworking does not specify whether modalities need to be determined between parties; we, however, strongly suggest putting in place an employer's notice with some rules to be obeyed during the home-teleworking (such as confidentiality at home, availability of the employee during the day, the possible reimbursement of costs, etc.) as well as for the employer to adapt some internal policies (e.g. the privacy policy stating the changes operated during full-time home-teleworking). Special attention needs to be given to insurance policies, especially industrial accident insurance.
 
Employees should be reminded that during telework they should perform their duties/function as usual. The employer may as such ask the employees concerned to be available during normal office hours. Employers are reminded that – based on the employment law Act of July 3, 1978 – they have the obligation to provide the work tools, so that during this ‘telework at home’, the employer should in principle provide all the necessary equipment (including computer equipment) or provide compensation if the worker uses their personal equipment.
 
Whether a reimbursement of other home-teleworking costs is compulsory is debatable; if any compensation is granted by the employer, it can be made on a lump sum basis bearing in mind that the National Social Security Office generally accepts the exemption of fixed telework expenses up to 10% of the remuneration earned while teleworking.
 
It is possible that the legal framework for this specific form of telework will be further developed by legislation in the coming days (not enacted yet at the moment this article was published).

 

4. Working from home: will employers continue to pay employees who work from home?

Employees who work from home are not affected with respect to their salary-related rights and are paid the full salary by their current employer, plus teleworking cost allowances if agreed with the employer (not mandatory for this new kind of teleworking).

 

5. What should employers do when employees cannot work from home and their place of work may have to be temporarily closed?

 For functions that cannot be performed from home and when performing them from the usual workplace is also made impossible (because social distancing and safety considerations cannot be respected), the employer will have to close down the premises.
 
If a 'force majeure' kind of situation occurs, temporary unemployment allowances can be requested.
 
If economic reasons are involved, the employer can start a process to invoke ‘temporary unemployment for economic reasons’ and ask for temporary unemployment allowances.
 
Eventually, if none of these situations are encountered and the employer wants to close the premises by themselves just as a preventive measure, no unemployment allowances can be applied for. In this situation, it is advised to conclude an addendum to the employment contract with the agreement of both parties to suspend the employment contract. Under Belgian law, it is indeed an obligation of the employer to provide the employee with work and salary, and any unilateral modification without a 'force majeure' type of reason is not permitted and could lead to constructive dismissal.

 

6. In case teleworking is not possible, can the employer oblige the employee to take vacation or working time reduction (RTT/ADV)?

 Under Belgian law, the employer is not allowed to impose vacation days. The decision to take holidays is a decision taken by mutual consent. The employer, however, has the obligation to make sure the employee can take his/her holidays.
 
Furthermore, in case of unemployment for 'force majeure' and if vacation days have been planned by the employee, the holidays will be suspended to the benefit of unemployment benefits.

The Belgian RTT/ADV regime is very specific, as these days have to be granted at the end of a specific reference period; if the employee still has RTT/ADV days at the end of the reference period (in many cases one calendar year) and the end of the reference period is approaching, the employer may consider requiring the employee to take RTT/ADV days.

 

7. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

 Employees who must stay home to look after children can ask for occasional teleworking, even if the employer can refuse. However, home-teleworking has become mandatory in certain scenarios from March 18 until April 5 (19), 2020 (see questions 1 and 3), which would allow one to watch their children while teleworking.
Employees who, as a result of the suspension of classes in schools, stay at home only to care for their children, cannot for this reason be temporarily unemployed for reasons of 'force majeure'.

It is only if it is clearly proven that there was no childcare and that the parent had no alternative, that temporary unemployment due to 'force majeure' could be applied for or occasional teleworking (as care in schools is only provided for children whose parents work in the health care sector, work in essential public sector departments or when the parents have no other option than to send the children for care to their grandparents (regardless of their age).
 
In other cases where the employee still has to go to her/his workplace, (s)he can also take a maximum of 10 days per year of unpaid leave for ‘compelling reasons’, looking after children because of school closure being one of those reasons.
 
 

8. Can the employer require disclosing if an employee has symptoms of an infection by the virus or if they have already been diagnosed?

It is in principle not permitted to require an employee to disclose personal information, as it could violate the employee's right to privacy (art. 22 Constitution, 8.1. ECHR).

However, the employer has the following obligations: (1) Obligation to analyze health and safety risks in the workplace and take necessary measures to preserve it (art. 5, §1 of the Well-Being At Work Act ("WWA"), art. 20, 2° of the Employment Contracts Act ("ECA")), (2) Obligation to adapt those measures in case of situational change (art. I.2-3 Well-Being At Work Code ('WWC")) and to take measures to protect employees against chemical and biological agents (art.  I.2-7, al. 3, 5° WWC). The employee, on the other hand, has the obligation to refrain from doing anything that could be detrimental to the safety of his or her colleagues and to his or her own safety (art. 17, 4° ECA).

We are of the opinion that in view of the current pandemic, and given the employer's protection and prevention obligations, the employer is entitled to ask the worker to report whether (s)he is a carrier of this contagious virus or whether (s)he is showing symptoms.

In Belgium, employers are advised to recommend that workers who think they have symptoms should contact their doctor by telephone. If the employee feels fit to work and does not declare her/himself unable to work, the employer is in principle not allowed to ask her/him for a ‘certificate of capacity’. The employer may, however, always send the employee to the occupational physician (médecin du travail/arbeidsgeneesheer), who then will evaluate whether a medical examination should take place or not.

However, if the employer notices that the physical/mental condition of the worker increases the risks at the workplace, (s)he has to notify the occupational physician, who will decide whether a medical check-up is necessary (art.I.4-4, §2 WWC). The occupational physician and eventually the employer can oblige the employee to go home in the frame of the employer's obligation to protect the health of her/his employees.

 

9. In an international employment scenario, will the internationally applicable social security law be impacted if expat employees now work from their home in Belgium?

In the frame of international mobility and in view of the current pandemic, the increased use of telework as a result of government measures can be a source of concern for cross-border workers and companies with regard to social security. Indeed, the sudden increase in professional activities carried out from home could, in some cases, lead to a change in the applicable social security legislation.

In application of EU Regulation 883/2004 on the coordination of social security systems, a worker who resides in the EU, EEA or Switzerland and works in another is subject to the social security of the country of employment. However, in the event of substantial activity in the Member State of residence (i.e. at least 25% of working time), the latter State becomes competent, in application of the EU Regulation. Due to the increased use of teleworking as a result of the COVID-19 measures, the activity of such cross-border workers could quickly become substantial in the country of residence.

In view of the exceptional situation, the competent Belgian ministries for social security for employees and self-employed workers have decided that the periods of telework performed on Belgian territory by cross-border workers due to the coronavirus will exceptionally not be taken into account for the determination of the applicable social security legislation and that they will therefore have no influence on their affiliation to social security.

This measure will apply from March 13, 2020 (midnight) and for as long as the emergency measures taken by the Federal Government to limit the spread of the coronavirus are in force.

Obviously, it will also be relevant for many workers and companies in situations of employment in a cross-border context to check whether foreign social security administrations take a similar position.

 

10. What is the impact of the COVID-19 virus on the processing of employees' personal data?

The Chair of the European Data Protection Board (EDPB) has provided on March 16, 2020 a statement on the processing of personal information in the context of the COVID-19 outbreak. In summary, the EDPB has confirmed that employers will be able to process personal information in the context of pandemics like COVID-19, provided that they can rely on appropriate legal grounds such as reasons of public health or the protection of vital interests. In such cases, consent of the data subject will not be required.

The EDPB also comments on the use of electronic communication data (such as mobile location data) by public authorities and highlights that additional rules will apply if using this information. Public authorities should first aim to process such information in an anonymous way, and, if this is not possible, Member States can introduce legislative measures on the basis of national and public security, enabling authorities to use this information.
 
In Belgium, the main principles in respect of the protection of privacy on the work floor remain applicable. In that respect, articles 6 and 9 of the General Data Protection Regulation (GDPR) are most important.
 
The following main aspects need to be respected:

• In principle, it is forbidden to process ‘special personal data’, and information relating to the health of workers in particular;
• Exceptionally, the employer may process this type of data under strict conditions (e.g. the collection and retention of medical certificates for the purpose of carrying out the obligations in the field of employment law (art 9.2b GDPR), for the purpose of preventive or occupational medicine, for the assessment of the working capacity of the employee (art 9.2h GDPR), or for reasons of public interest in the area of public health (art 9.2i GDPR);
• The employer must be transparent vis-à-vis the employees (i.e. adequate communication);
• The employer must document its data protection policy (and possibly adapt it to the COVID-19 consequences related to home-teleworking);
• In any case, the employer must respect the principles of proportionality and minimum data processing (i.e. is it effective and strictly necessary for me to process certain personal data in order to achieve the intended purpose, such as to guarantee the safety and health of the staff, to ensure the proper functioning and continuity of the company, etc.?).

 
The Belgian Data Protection Authority published advice for employers and employees in the frame of COVID-19. You can read more here: COVID-GBA/COVID-APD.


Stefan Nerinckx
Partner – Belgium
Stefan.Nerinckx@fieldfisher.com








 

1) What does the government's exit strategy look like in your jurisdiction?

Belgium's COVID-19 exit-strategy measures were presented by the government on 24 April 2020.The presented timetable for phasing out the restrictions was indicative only and the applicable measures for each phase needed to be enacted by appropriate legal instruments.

By Ministerial Decree published 30 April 2020, and as of 4 May 2020, a first step in phasing down the current measures has already been taken. Home-teleworking is said to remain the standard, but from a legal perspective it moves from an "obligation" to a "recommendation". This means that, at least until after 8 June 2020 (start date of the currently planned last phase), home-teleworking will remain recommended - but not the only measure for the organisation of work. Furthermore, in our opinion, general employment laws continue to apply the home-teleworking.

This means that besides home-teleworking companies, sectors of industry and B2B-services where telework is not possible and which cannot meet the requirements in terms of physical social distance, can reopen provided that they are able to apply a series of health recommendations, including wearing a mask (Corona exit guide).
In essence, it now comes down for companies to determine the best way of working in a safe environment, in consultation with the employees (representatives).

In terms of temporary unemployment, the application of the simplified procedure for the granting of temporary unemployment by force majeure as a result of COVID-19 (initially foreseen until 19 April 2020) will be applicable until 30 June 2020.

Various other measures are currently in or will become in force such as:

• an exemption of taxation for voluntary overtime (up to 220 hours) in 'critical sectors' until 30 June 2020; 'critical sectors' are defined by the MD of 23 March 2020.

• relief measures on the ban on permanent workers from other companies being made available to employers in 'critical sectors' (until 30 June 2020 – for more details, see question 2).

• a special scheme of temporary work is also introduced for 'vital sectors'; it concerns only the 'vital sectors' determined by the RD of 27 April 2020.

• consecutive employment contract for a determined period in 'critical sectors' under strict conditions until 30 June 2020.

• neutralisation of the working hours of students in the second quarter of 2020. 

2) What are the employment law related measures taken by your government to re-activate the economy after the lock-down?

1.   Social distancing

In principle, the employer has the following general obligations that apply:

(1) Obligation to analyse health and safety risks in the workplace and take necessary measures to preserve it (art. 5, §1 of the Well-Being At Work Act ("WWA"), art. 20, 2° of the Employment Contracts Act ("ECA")),
(2) Obligation to adapt those measures in case of situational change (art. I.2-3 Well-Being At Work Code ('WWC")) and to take measures to protect employees against chemical and biological agents (art.  I.2-7, al. 3, 5° WWC).

The employee, on the other hand, has the obligation to refrain from doing anything that could be detrimental to the safety of his or her colleagues and to his or her own safety (art. 17, 4° ECA).

As indicated above, home-teleworking currently remains the standard (as a recommendation). The measures regarding home-teleworking are discussed more in detail in question 3 below.

For all functions where teleworking is not possible or not applied by the employer, it is still required to respect the 1.5m social distancing at the work place where possible, and to take the necessary preventive measures to adapt the work place for the return of employees. That is required from 4 May 2020 for industry & "B2B" functions where both teleworking and 1.5m social distancing is impossible.

Belgian social partners have prepared a non-mandatory general guide on protection and prevention, and which the employer, to determine the preventive measures should use (Corona exit guide). This guide is dynamic and designed to evolve in line with the current situation. It gives general recommendations for the organization of work within a company, including information regarding home-to-work commute, welcoming of workers, adaptation and information on the work place itself, etc.

The guide also contains special recommendations regarding working time. Breaks should preferably be taken successively in order to avoid gatherings in the break room as much as possible; start and finish schedules modified so as not to make the workers' arrival and departure times coincide; and even to provide for different "shifts", with the same workers always in the same group in order to avoid workers crossing each other as much as possible.

Specific guides or protocols on a sector level may be additional to the foundations of this general guide (agreements already concluded in following sectors: textile sector, garages, bodywork, metal trade).

In companies where social distancing is not possible, employers' must take necessary preventive measure to offer at least an equivalent protection level.

We remind that the employer is required to involve the internal protection and prevention service (IPPS) in the measures that are taken regarding work safety matters (art. I.2-10 WWC), and, except in cases of justified emergencies, the employer must also inform and request a prior opinion from the Committee for Prevention and Protection at Work ("CPPW"; art.II7.-14, 15, 19 WWC).  Considering the urgency, the Ministerial Decree of 23 March 2020 (adapted on 30 April 2020), provides that these rules must be adopted with due regard for social consultation within the undertaking, or "failing that" by involving the prevention services (internal/external).
Therefore, if sensitive and important measures are required to protect work safety, like for the preparation for the return of workers from quarantine, it is advised to involve the IPPS and the CPPW.

Employees who work from home are not affected with respect to their salary related rights, and are paid the full salary by their current employer, plus teleworking cost allowances if agreed with the employer (not mandatory for this kind of home-teleworking).

2.   Putting at disposal of staff between companies

The Royal Decree n°14 of 27 April 2020 introduced a regime of putting at disposal of workers (also called "hiring out of employees" whereby the employer's authority is exercised by another company, not being the employer). Due to this new regime, applicable from 1 April to 30 June 2020 all employers can put their workers at disposal of companies recognised as being in 'critical sectors' (health, food, hospitality, security, transport, media, energy and waste collection and treatment services, etc.).

Only "permanent" workers (no interim/replacement contracts) hired before 10 April 2020 may be deployed, by signing, before the start of the posting, a contract between (1) employer, (2) the employee, (3) the "user" company in a 'critical' sector.

The employee should receive at least the salary and benefits applicable with the "user" company, and the latter will be responsible for the application of work safety laws and will be jointly and severally liable for the payment of any remunerative benefit arising from the putting at disposal.

3.    Special conditions on employment contracts for a limited duration

In principle, the concluding of successive limited duration employment contracts is sanctioned by the conversion of the employment relationship into an open-ended contract (certain exceptions apply).
However, Royal Decree No. 14 provides that concluding employment contracts of a limited duration, between 1 April and 30 June, 2020 of at least seven days, only in 'critical' sectors, will not be sanctioned by the conversion into a contract for an undetermined period.
 
3) After the obligation - imposed by the government - to home telework stops, how should companies continue in organising teleworking?

The announced exit-strategy considers that, also after 4 May 2020, telework will be the standard. As a result, employers may have to organise home-telework where it is possible.

Coming into effect as from 4 May 2020, the legal framework that imposed an "obligation" on employers to organise telework, moved to a "recommendation" (Ministerial Decree of 23 March 2020). Even if the amended wording of the Ministerial Decree is ambiguous, it is clear that there is a legal difference between the current situation (telework being "recommended") and the situation until 3 May 2020 (telework being "obliged").
As the legal obligation to apply telework where possible is not formally extended beyond 3 May 2020, employers will as of that date no longer be able to refer to the previous installed obligation of home-teleworking as such.

The existing legal framework for home-teleworking is thus not adapted to the current situation. As a result, in absence of extension of the legal obligation to organise home-teleworking, it would seem that an employer could only refer to the general health and safety obligations incumbent upon them (keeping in mind that home-telework, from a legal perspective, is "recommended"). In consultation with the prevention advisor - occupational physician, home-teleworking could then be continued as part of the company's measures on health and safety at work (adequate prevention measures).

In any case, employers will have to take appropriate actions regarding the organisation of home-telework in their company in consultation with employees and employee representatives.
 
4) If your company has difficulties with the re-start, what general legal (employment law related) options are available to reduce costs?

1.   Apply for economic unemployment (general scheme)

Once the current flexible and exceptional scheme of unemployment for force majeure Covid-19 have expired (on 30 June 2020 unless extended), the undertakings will have to revert to the normal unemployment schemes.
One of those unemployment schemes, is the unemployment for economic reasons.

An employer may apply for the scheme of unemployment for economic reasons when he is temporarily unable to provide work for his employees due to a reduction in turnover, production, customers or the number of orders.

The unemployment for economic reason is subject to different conditions for blue-collar and for white-collar workers, and the regime and consequences are also different. For example, for white collars, it is required to prove either (1) a drop of at least 10% of the orders, production or revenues, or (2) at least 10% of temporary unemployment among blue collars, or (3) being recognized as a company in difficulties.

Moreover, for white-collar employees, it is required that a collective bargaining agreement at the sector or company level or, in the absence thereof, a collective plan, is entered into prior to the lodging of the application.
In order to enable the undertakings to accelerate their application, the Collective Bargaining Agreement no. 147 ('CBA 147'), entered into at the level of the National Labour Council, provides that undertakings that are affected by the Covid-19 coronavirus can base their application on CBA 147. As a result, those undertakings which do not have the obligation to negotiate a company CBA or draw a collective plan prior to their application. This specific measure for the acceleration and facilitation of the application for temporary unemployment for economic reasons for white-collar employees, is only temporarily applicable until 30 June 2020.

The special Covid-crisis procedure provides for a prior information and consultation obligation that must be complied with 14 days before the application of the temporary unemployment.

Both for the white-collar and the blue-collar employees, the unemployment scheme is limited in time (the duration of the suspension of the employment contract cannot exceed 16 weeks per calendar year in case of a complete suspension and 26 weeks in case of a partial suspension). 

The employees are entitled to temporary unemployment allowances for the days of unemployment of 65% of their capped average daily remuneration (70% until 30 June 2020).
 
2.    Encourage part-time work

When temporary unemployment for economic reasons cannot be applied, the employer could encourage his employees to temporarily work part time.

Employees can make the choice to reduce their working time with 20 % or 50 % in the frame of a parental leave or a time credit, provided of course, they fulfil the legal conditions to apply for one of such schemes.
Under certain conditions, they will be entitled to respectively a parental leave or credit time allowance from the National Employment Office.

The employer and employee can also agree to reduce temporarily the working time outside the above mentioned schemes.

For undertakings located in the Flemish region, there exists an incentive bonus to encourage employees to work part-time in order to avoid redundancies. This incentive, being a monthly premium for the employee between EUR 68 and EUR 172 has temporarily been extended to companies that, as a result of the corona crisis, experience a decrease of at least 20% in turnover, production or orders in the month preceding the interruption compared to the same month in the previous year. This extension is applicable from 1 April 2020 to 30 June 2020 at the latest.

Similar incentives could be put in place at Federal level or at the level of the other Regions. However, at this date, no concrete information is available in this respect.

3.    Corona parental leave

On 2 May 2020, the Council of Ministers approved corona parental leave for a period from 1 May until 30 June 2020. This leave allows workers who have been bound for at least one month by an employment contract with their employer and with the employer's agreement, to reduce their employment by 1/5 time or half-time for their children who have not reached the age of 12. It may be requested by adoptive parents and foster parents as well.

Corona parental leave is not deducted from the regular parental leave credit. It is an additional leave. It comes with a higher (gross) allowance than that granted for ordinary parental leave (25% more). The application procedure is shorter than for ordinary parental leave. The employee has in principle to give three working days' notice to his employer. Workers who currently benefit from regular parental leave may also convert their current leave into corona parental leave.

4.    Apply flexible work schedules

If the business cannot immediately re-start normally, but if it is expected that there will, on the contrary, be a peak in the business in a few months, the employer can apply flexible work regimes.

The flexible work regimes enables the employer, (within certain limits that can vary from sector to sector), to have his employees work less in a certain period on the basis of a reduced work schedule, and work more in another period on the basis of a peak work schedule (without having to pay overtime pay).

If the work regulations do not yet provide for flexible work regimes, they must be introduced in the work regulations. To amend the work regulations, a specific legal procedure must be complied with, implying, if applicable, a consultation of the Works Council or the employees.

5.    Restructuring

If it is expected that the business will not resume at a normal level in the medium or the long term, dismissals could be considered, in order to save the undertaking and, hence, a certain level of employment.

Whether linked or not to the Covid-crisis, the legal provisions regarding dismissals must be complied with (service of the legal notice to perform or payment of a corresponding severance indemnity).

If as employer you plan to perform several dismissals at the same time (or within a period of 60 days), you must check whether the restructuring plan does fall under the legislation on multiple dismissal (sector level) or collective dismissal, which triggers the compliance with the mandatory prior information and consultation procedure. This prior information and consultation procedure can result in a social plan negotiated with the unions. A specific collective dismissal premium might be due to the employees dismissed in the frame of a collective dismissal (specific thresholds apply).

The thresholds for the application of the rules on information and consultation in event of collective dismissal are the following:

• Undertakings that employed, on average, in 2019 more than 20 and less than 100 employees: as from 10 employees

• Undertakings that employed, on average, in 2019 at least 100 and less than 300 employees: as from 10 % of the number of employees

• Undertakings that employed, on average, in 2019 at least 300 workers: as from 30 employees

You should also check whether there exist specific rules at sector level on multiple dismissals, which also trigger the compliance with a mandatory prior information and consultation procedure.
 
5) Aspects of employee privacy at the workplace after COVID-19

The Covid-19 crisis does not alter the principles and rules on which the protection of employees' privacy is based. Regardless of the technology, the tools and the third-party providers that are being used, companies who offer homeworking tools to their employees must ensure that the processing of their employee data complies with the principles and rules under the General Data Protection Regulation (GDPR) and must also be aware of the specific rules that govern employees’ privacy under national laws. We have elaborated on this in our previous newsletter.

Authorities have been talking for some time about a general app, that would be recommended by the legislator, to track COVID infected/immune persons. To make this app operational, an enormous amount of data needs to be available, more specifically personal data (such as name, address, telephone number, ...), special categories of personal data (such as health data, ...) and the location details of the data subject. Privacy is at stake. If such an app would be available on the market, can an employer make the possession and use of such an app mandatory at the workplace?

The employer would then be able to identify an infected employee and could:

• ask the employee to leave the workplace and contact the occupational physician (see our previous newsletter)

• find out which colleagues the infected employee has had contact with;

• notify co-workers who may be at risk of infection.

Given that the app concerns the processing of personal data, the GDPR applies without any doubt, which means that any data controller (i.e.: the manager or controller of the app - the employer) will have to base the processing of these data on a legal basis. Given the current health crisis, the employer has the possibility to base the processing on the fulfilment of its legal obligation to protect public health or on the protection of the vital interests of its employees. As such there might be a legal basis for an employer to have its employees use the app, at least for the time being and only for the purpose of protecting its employees.


Stefan Nerinckx
Partner – Belgium
Stefan.Nerinckx@fieldfisher.com










 

1. What is your government's response to protecting workers as a result of Corona-virus?

The Chinese central government, as well as different local government authorities have introduced a series of emergency measures since the outbreak of Covid-19, such as expanding the paid Chinese New Year Holidays, calling for avoiding layoffs during the virus control, and specifying that employees who cannot go back to work due to medical treatment or government quarantine shall be fully paid.  National and local human resources departments have also provided social insurance payment exemption or relief for certain qualified enterprises.

 

2. Working from home – Are employers continuing to pay employees who work from home?

 In general, the employer has the liability to pay the salary in full to those employees who are arranged to work from home. In certain cities and regions , it is also stipulated that in case employees are required to work from home on non-working days, employers shall arrange for days off-in-lieu or pay overtime payment as per statutory standard to employees.

 

3. What other considerations should employers take into account when allowing employees to work from home?

 Specific company rules regarding working from home shall be established including online attendance check, internal approval procedure, KPI evaluation, commercial secrets protection, etc.

 

4. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?

 Employer is recommended to first negotiate with its employees to arrange for their paid annual leaves.  In addition, employer could also negotiate with their employees to adjust salaries, to change job positions, or to shorten working hours, etc. so as to avoid or reduce layoffs. In case employer has to suspend production or operation due to the impact caused by the virus, it is allowed to pay living expenses to their employees only (rather than full salary) starting from the second month when such situation appears.

 

5. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

 There is no national level regulation addressing this issue. However, in some cities (e.g. Beijing), the local regulation provided that each household is allowed to arrange one person to look after the minor children at home before schools are reopened. Such person’s salary and benefit shall be paid by the employer as normal attendance.

Liang Xing
Partner – China
Liang.xing@fieldfisher.com






 

1) What does the government's exit strategy look like in your jurisdiction?

Most companies in China have already returned to work after the mandatory government quarantine. The Chinese central government, as well as local government authorities, have issued various preferential policies to stimulate the economy including but not limited to:

(1) tax relief: qualified small scale taxpayers are entitled to tax relief regarding VAT;
(2) rent deductions/exemptions and credit assistance: certain qualified enterprises (e.g. enterprises in certain office buildings operated by State Owned Enterprises) are free from rents for business use during the government quarantine period;
(3) simplified administrative proceedings, including online application and processing;
(4) enterprises shall have necessary medical protective facilities (e.g. medical masks), and shall strengthen the health monitoring of its employees. In certain districts official Covid-19 tests are available to the general public (appointed by enterprises).
 
2) What are the employment law related measures taken by your government to re-activate the economy after the lock-down?

National and local human resources departments have been continuing to provide social insurance payment exemption or relief for certain qualified enterprises. Employers who have operation difficulties during the pandemic period are encouraged to negotiate with employees regarding salaries, shortening working hours, etc. to avoid layoffs to the best extent.

Meanwhile, for those employees who cannot resume to work on time because the virus situation in places where they live has not yet been completely controlled, they shall be treated as normal attendance and shall be fully paid.  Any discrimination against those employees who come from key epidemic areas are strictly prohibited.
 
3) After the obligation - imposed by the government - to home telework stops, how should companies continue in organising teleworking?

The general rule is that employees who work from home, regardless of whether required by government authorities, shall be fully paid as normal attendance. Employers who intend to continue the work from home policy shall consider about the HR management issues:

(1) work overtime: employees are more likely to deal with their personal stuff first and then handle their work beyond the normal working hours, under which circumstances they may claim for overtime payment. Since employer’s overtime payment obligations may not be excused or abolished via contract terms or company policies, it is therefore important to establish the overtime work approval scheme to clarify relevant work instructions;
(2) absence from work: under current legal practice, it would be hard for employers to claim that employees are absent from work in case employees are not required to come to the office and check in on a daily basis. Employers shall consider an effective response scheme for employees to check their availability.
Employers may also apply for comprehensive working hour scheme to local human resources authority for their qualified employees.
 
4) If your company has difficulties with the re-start, what general legal (employment law related) options are available to reduce costs?

Employers are encouraged to negotiate with employees to lower their standard salary and other treatments.  If an employer company suspends production or operations for a period more than a wage payment term, it is permitted to pay the basic salary based on the local company shutdown standard, which might be varied in different cities.

In the case that layoffs are unavoidable, the best option is to enter into a bilateral termination agreement with the employee by reaching a consensus on the proper severance payment amount.
 
5) Aspects of employee privacy at the workplace after COVID-19

The employer is only permitted to require employees to provide personal information that is directly related to the performance of the employment contract.

If employers require the employees to provide any other information related to their travel route (whether have been to key epidemic areas or not); and health conditions (temperature, any Covid-19 symptoms, etc.); employers must secure the proper authorization from local medical and disease control institutions, or obtain them from the employer’s safety management obligation only, provided that any informed consent necessary is obtained from the employee.
 

1. What is your government's response to protecting workers as a result of Corona-virus?

 The French Ministry of Labour has drafted and is updating a Q&A for companies and employees on Covid-19 to help them face this risk and provide them with answers on (i) the measures to be taken in different situations or (ii) applicable rules. At this stage, these are only recommendations but the government may take more coercitive measures. President Macron asked employers to authorize employees to work from home as much as possible.
 
Besides, the requirements for benefiting from social security financial compensation for persons exposed to coronavirus have been adapted. Therefore, the following people will receive a social security daily benefit from the French Social Security Administration as from the first day of their work stoppage and without the minimum seniority condition being required :

• Employees who are in quarantine after having been identified as a "high-risk contact case" ("cas contact à haut risque") by the Regional Health Agency,
• Employees who have to look after a child under the age of 16 years old or a child with disabilities without age limit, during the closure of his/her daycare centre or school,
• Employees suffering from certain serious diseases or pregnant employees (mainly from the third quarter onwards), when working from home is not possible.

 

2. Working from home – Are employers continuing to pay employees who work from home?

If employees continue to work, even remotely, their employer shall pay their whole remuneration.

 

3. What other considerations should employers take into account when allowing employees to work from home?

 In the event of exceptional circumstances, in particular the threat of an epidemic, or in the event of force majeure, the implementation of telework may be considered as an adaptation of the workstation made necessary to allow the continuity of the company's activity and to guarantee the protection of employees. In such cases, the consent of the employee, which is normally mandatory, is not required and the implementation of telework does not require any formality. The employer shall ensure that employees are provided with the necessary IT tools to work from home.
 
Nevertheless, due to its general duty of care, the employer must ensure that the employee can perform his/her duties from home without risk to his/her health.
 
 

4. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?

 As it is reminded by the government Q&A, if an employee does not benefit from a work stoppage issued by the Doctor from the Regional Health Agency, but his/her employer asks him/her not to come to work, his/her remuneration shall be maintained. Such period of absence will be considered as a period worked and the employee will benefit from the same rights as the employees who are still working in the premises of the company.
 
In order to help employers who are forced to stop activities and suffer severe economic difficulties, the French state employment fund provides for extended short-time work ("activité partielle"). During such short-time work period, employees receive about 70 % of their compensation. The State will provide financial help to the employers.

 

5. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

As previously stated, employees who must look after a child under the age of 16 may benefit from a daily allowance from the French Social Security Administration. So far, this measure does not apply for employees who have to look after dependants.

Laurence Dumure-Lambert 
Partner – France
Laurence.DumureLambert@fieldfisher.com





 

1) What does the government's exit strategy look like in your jurisdiction?

The exit-strategy and timetable for phasing out France's current COVID-19 measures was presented by the Prime Minister on 28 April 2020.

In addition, on May 10th the Parliament passed a law extending the state of health emergency until July 10th,  2020.

This new law contains provisions regarding the criminal liability of decision-makers such as companies and their legal representatives. It is specified that Article 121-3 of the Criminal Code, which provides for the criminal liability in the event of negligence or carelessness, is applicable taking into account the powers and means available to the perpetrator during this period of sanitary crisis, as well as the nature of his missions or functions, in particular as a local authority or as an employer.

Furthermore, the French Ministry of Labour released on May 3^rd a national exit protocol for companies. This protocol has no legal value but provides employers with practical recommendations. It helps companies to comply with their health and safety obligations towards their employees.

The main recommendation is to continue home-teleworking as much as possible. When home-teleworking is not possible, employers may take the following actions:

• Organizational measures such as staggered hours, 

• Collective protection measures such as social distancing : 1 meter around of the person without contact (4m² per person) , 

• When organizational and collective protection measures such as social distancing are not possible, the employers provides for individual protection measures such as masks.

The French Ministry of Labour has also released specific guides at sector and industry levels and on teleworking.

In essence, companies receive practical information on how to determine the best way of working in a safe environment by identifying the risks, putting in place safety measures and updating the risk assessment document, together with the Economic and Social Committee ("Conseil Social et Économique").

Various other measures are currently in force such as:

• Increase in the annual ceiling of tax exemption for overtime and additional working time. Thus, if overtime and additional time worked between 16 March 2020 and the last day of the state of health emergency leads to the annual limit of €5,000 provided for by the French General Tax Code being exceeded, the annual limit is then raised to €7,500. However, this limit may not exceed €5,000 for overtime and additional working time worked outside the period of the state of public health emergency (article 4 of the amending Finance Law for 2020 n° 2020-473 of 25 April 2020),
   

• From a tax & social security perspective, companies experiencing difficulties as a result of COVID-19 extraordinarily may request for payment extensions (article 4 of Order n°2020-428 of 15 April 2020 for social security contributions).  

• Deadline for payment of the mandatory profit-sharing and optional profit-sharing to beneficiaries or allocation to an employee savings plan or a blocked current account of the amounts allocated under a mandatory or an optional profit sharing plan in 2020 is extended to 31 December 31, 2020 (Article 2 of Order n° 2020-322 du 25 mars 2020)

Finally, a draft law providing various urgent provisions to deal with the consequences of the Covid-19 outbreak was presented on May 7^th to the council of Ministers. This draft law contains a series of empowerments to legislate by orders in labour law, concerning short-time work, unemployment insurance, meal vouchers, subleasing, temporary employment contract, optional profit sharing in companies with less than 11 employees.
 
2) What are the employment law related measures taken by your government to re-activate the economy after the lock-down?

1. Social distancing

As a general principle, the employer shall comply with the following obligations:

(1) Obligation to analyse health and safety risks at the workplace, to take necessary measures to preserve employees health and safety and to update the risk assessment document (DUER) in the event of a new risk (Articles L. 4121-1, L. 4121-2, L. 4121-3 and R. 4121-1 of the French labour code)
(2) Obligation to adapt those measures to new situations or in case of a change in a situation (Article R. 4121-2 of the French labour code) and to take measures to protect employees against chemical and biological agents (L. 4121-3 and L.4421-1 of the French labour code).

On his side, the employee has the obligation to refrain from doing anything that could be detrimental to the safety of his or her colleagues and to his or her own safety (Article L. 4122-1 of the French labour code).

As indicated above, home-teleworking currently remains the standard (as a recommendation). The measures regarding home-teleworking are described in more detail in question 3 below.

For job functions where teleworking is not possible or not applied by the employer, it is still required to comply with the 1-meter around each person rule where possible, and to take the necessary preventive measures to adapt the work place for the return of employees to the workplace.

As above-mentioned, the French Ministry of labour released a non-mandatory national reopening protocol on protection and prevention, to be used by each employer in order to determine the organizational and collective preventive measures that must be implemented. This practical guide is designed to evolve rapidly in line with the evolution of the current situation. It gives general recommendations for the organization of work within a company, including welcoming of workers, adaptation and information on the work place itself, etc.

The protocol also contains special recommendations regarding working time. Breaks should preferably be taken successively in order to avoid people gatherings as much as possible. In addition, work schedules can be modified so as not to make all of the workers' arrival and departure times coincide.

Specific guides for industries or sectors of activity are available to employers (for example for retail trade sector, transport and logistic sectors, industry sector, taxi drivers, etc).

It must be noted that companies with at least 50 employees are required to inform and consult with the Social and Economic Committee about the measures taken regarding safety at work (Article L. 2312-8 of the French labour code). As an exception, the time schedule process to inform and consult the Social and Economic Committee in connection with Covid-19 (Decrees n°2020-508 of 2 May 2020 and n°2020-509 of 2 May 2020) are shorter.

1. Economic measures

As above mentioned, several economic measures were set up by the French government, such as:

• increasing the ceiling of tax exemption for overtime and additional working time, 

• extending payment dates for social contributions and taxes, 

• extending deadlines to pay beneficiaries or allocation to an employee savings plan or a blocked current account of the amounts allocated under a mandatory or an optional profit sharing plan.

In addition, pursuant to Article 6 of Order n°2020-323 of 25 March 2020 modified on 1 April 2020, specific rules temporarily apply to companies that belong to specific sectors of activity considered as necessary for the Nation's security and to the continuity of the economic and social life, as follows:

• the maximum daily working time may be extended to 12 hours;

• the maximum daily working time performed by a night worker may be extended to 12 hours, subject to the granting of a compensatory rest period equal to the excess of the maximum period provided for by law;

• the daily rest period may be reduced to 9 consecutive hours, subject to the granting of a compensatory rest equal to the length of the rest the employee was unable to take;

• the maximum weekly rest period may be extended to 60 hours;

• the weekly working time calculated over any period of 12 consecutive weeks or over a period of 12 months for certain agricultural holdings, enterprises, establishments and employers mentioned in the Rural Code may be extended to 48 hours;

• the weekly working time of night workers calculated over a period of 12 consecutive weeks may be extended to 48 hours.

These derogations shall cease to have effect on 31 December 2020.          

Finally, pursuant to pursuant to Article 7 of Order n°2020-323 of 25 March 2020 modified on 1 April 2020, employers in sectors of activity particularly necessary for the security of the Nation and the continuity of economic and social life, may derogate to the Sunday rest rule by allocating weekly rest by rotation.
 
3) After the obligation - imposed by the government - to home telework stops, how should companies continue in organising teleworking?

The French government exit-strategy provides that, after 11 May 2020, home telework will be the standard. As a result, employers shall continue to ask employees to work from home if possible.

The legal framework of telework therefore continues to apply to employees who remain in a teleworking situation. Because of the current Covid-19 outbreak (Article L. 1222-11 of the French labour code) each company can impose teleworking without the prior consent of employees. Employees who work from home are not affected with respect to their salary and related rights.

The employer's main obligations are to make sure that employees are well equipped to telework, to maintain the social bound between employees and to monitor working time especially for employees not subject to a working time arrangement computed in days over the year.

The French Ministry of Labour released on May 9^th a Q&A on teleworking, which provides for questions and answers on teleworking after May 11^th, such as:

• Question:" Does my employer have to compensate me for teleworking?" 

• Answer: "The employer is not required to pay his or her employee an allowance to reimburse the costs of teleworking, unless the company signed an agreement or a charter on this respect. The usual rights to meal vouchers and meal premiums are maintained."

 
4) If your company has difficulties with the re-start, what general legal (employment law related) options are available to reduce costs?

The main options in order to reduce costs are the following :
 

• Apply for short time work (furlough scheme)

The short-time work system ("activité partielle") allows employers to seek financial help from the State in order to be able to pay employees. This possibility is open to employers in case of a financial loss due either to the temporary closure of their establishment or part of an establishment or a reduction in the applicable working time.

All companies whose activity is reduced due to the Covid-19 and in particular those (restaurants, cafés, shops, etc.) that are subject to a closure order pursuant to the decree of 15 March 2020 are eligible for short-time work.
In companies hiring more than 50 employees, the implementation of furlough within a company or an establishment is subject to the prior information and consultation of the Social and Economic Committee.

However, given the current exceptional circumstances, the Labour Code provides that this opinion may be obtained after the request and transmitted to the DIRECCTE within a period of at most two months from the request for short-time work. The request for short-time work shall be made by the employer online (www.activitepartielle.emploi.gouv.fr).For this request, some information must be given by the employer such as, the reason for using such furlough scheme, a description of the economic situation giving rise to the request start date and end date of short-time work, the number of employees concerned and expected number of hours not worked over the period.

Until 31 December 2020, the administrative authority renders its decision within two days. After this period, its silence shall constitute acceptance.

Furlough scheme authorisation can be granted for a maximum period of 12 months.

During the short-time work period, the employment contracts are suspended but not terminated and employees receive a compensation from their employer equal to 70% of their gross remuneration, which equals to about 84% of their net remuneration. However, overtime is not covered by the short-time compensation system.

In order to help companies to pay their employees, companies receive an allowance from the State corresponding, for each employee, to 70% of the gross remuneration, up to a limit of 4.5 times the minimum wage (i.e. 45.675 euros per hour).

The hourly rate of the allowance may not be less than 8.03 euros (this minimum does not apply to apprenticeship or professionalization contracts).

However, please note that it is likely that the government will reduce this help in the coming weeks.

• Enter into a specific collective bargaining agreement ("Accord de performance collective")

A specific collective bargaining agreement named "Accord de performance collective" may be concluded with unions in order to address issues linked to the proper running of the company.

This agreement is a way for the employer to modify the employment contract of the employees. It can contain provisions relating to :

• modification/ organisation of working time;

• determination of the remuneration (fixed and variable remuneration), provided that the company complies with the minimum wages provided by both the applicable CBA within the company and the legal provisions;

• professional or geographical mobility within the company.

Upon conclusion of this agreement, the employer informs the employees of the agreement, its content, and of the right they have to accept or refuse the change determined by the collective agreement to their employment contract.

As from this date, the employee has one month to refuse (in writing) the application of the agreement.
If an employee expressly refuses the application of the agreement, the employer is entitled to terminate the employee. The employer has two months as from the refusal of the employee to start the dismissal procedure. Please note that such a dismissal is not considered as a redundancy (a termination based on economic grounds).
 
- Proceed to a redundancy

The last main option is to contemplate to make some employees redundant.
This option is available in case of economic hardship.

Under French law, an employer can make employees redundant if it can justified of the following reasons:

• Economic difficulties characterised either by a significant change in at least one economic indicator such as a fall in orders or turnover, operating losses or a deterioration in cash flow or of the gross operating income ("exédent brut d'exploitation"), or by any other element likely to justify these difficulties. 
  A significant decline in orders or revenues exists when the duration of this decline is, in comparison with the same period of the previous year, at least of:
  a) One quarter for a company with less than eleven employees;
  b) Two consecutive quarters for a company with at least 11 employees and less than 50 employees;
  (c) Three consecutive quarters for an enterprise with at least 50 employees and less than 300 employees;
  (d) four consecutive quarters for an enterprise with 300 or more employees;
   

• Major technological changes; 

• A reorganization of the company necessary to safeguard its competitiveness; 

• The full and final cessation of the company's activity.

Economic difficulties, technological changes or the need to safeguard the competitiveness of the company are be assessed at the level of the company if it does not belong to a group and otherwise, at the level of the sector of activity of the group to which the company belongs. On the latter case, the economic rational is assessed on the national territory, except in the case of fraud.

The redundancy procedure depends on the size of the company, the presence of staff representatives and on the number of employees to be made redundant.

There are different types of procedure, documents to be issued and steps to be complied with.
For instance, within a company of at least 50 employees, when it is contemplated to dismiss at least 10 employees, the employer should implement a redundancy plan ("plan de sauvegarde de l'emploi) containing accompanying measures (such as trainings, additional severance indemnities, financial support to start a business, etc). The redundancy plan is reviewed by the labour administration.
 
5) Aspects of employee privacy at the workplace after COVID-19

The provisions regarding the protection of the employee's privacy at the workplace have not been modified because of the Covid-19 crisis. Indeed, under French law, the employer cannot ask the employee questions about his/her state of health.

However, given the exceptional circumstances, and the necessity to protect the health and safety of all the employees, the employer can ask employees to declare if they have any Covid-19 symptoms.

In any case, it would not be possible to sanction an employee who refuses to share this personal information with his employer.
 

• About Covid-19 tests

The government issued a notice mentioning that Covid-19 tests should be done by professionals.
Employers may not organize for tests at work nor impose them to employees.

It is possible to contact the occupational health service in order to ensure that an employee who was sick can go back to work or not.
 

• About temperature check

As part of a set of precautionary measures, companies can make available a temperature check for people entering their site.

The temperature check process must then comply with the provisions of the Labour Code, and in particular be proportionate to the objective pursued. The employer shall offer all the necessary protection to the employees concerned in terms of prior information, preservation of dignity, access to the site, and the absence of information storage.

In this respect, temperature checks must be intended solely for the verification of the temperature at the entrance of the site by means of a thermometer, without any trace being kept, or any other operation being carried out (records of these temperatures, feedback, etc.). 

Consequently, the following processes are not allowed: 

• the mandatory temperature records of each employee or visitor and their recording in an automated process or in a paper register ; 

• the automated temperature sensing operations using tools such as thermal imaging cameras. 

In any event, the employee has the right to refuse a temperature check.
 

• Tracing app

The Government is still working on the implementation of a tracing app named Stop-Covid. It will be tested as from 12 May 2020 and should be deployed by June.


Laurence Dumure-Lambert 
Partner – France
Laurence.DumureLambert@fieldfisher.com




 

1. What are the general obligations of employers?

Employers have a general duty of care towards their employees. This also includes informing employees about the risks of infection and illness, especially if employers already have concrete indications of these risks. This is particularly the case if employees have recently been in a coronavirus risk area.

In addition, employers have a duty to their employees to take measures to prevent the spread of disease and to communicate their recommendations around behaviour and hygiene. Examples of this include:, hygiene guidelines for washing hands, the provision of disinfectants or the recommendation to cough into the crook of your arm or a handkerchief and avoid shaking hands. In workplaces with an increased risk of infection such as health care, sales or transport, special protective measures may need to be taken, for example providing breathing masks or protective gloves.
 
The risk areas for coronavirus are currently defined by the Robert Koch Institute (RKI) and can be found under the following link: https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Risikogebiete.html
 

2. Are employees allowed to refuse to work for fear of infection?

Employees generally have no right to refuse to work and stay at home, unless they are requested to perform an activity which is associated with a significant personal risk to health and life and goes beyond general risk of infection for the employee.

If, for example, there is a justified suspicion that an employee is at work and the employer does not take any protective measures the employee may have a right to refuse to work in the office.

Furthermore, a suspected case of a flu-like infection is not in isolation a reason to refuse to work. According to information from the Association of Statutory Health Insurance Physicians (kassenärztliche Vereinigung), a justified suspected case only exists if the person has had contact with a confirmed "coronavirus case" or has been in a risk area specified by the RKI within the last 14 days or has symptoms such as fever, hoarseness, cough or shortness of breath.

On the other hand, prophylactic absence from work without concrete evidence of a considerable risk of infection or without a justified suspicion legally constitutes an impermissible refusal to work. In such cases, employees must expect consequences under labour law. Depending on the individual case, employers can admonish, warn and, if necessary, even terminate the employment contracts of employees. 
 

3. May employers arrange working from home for their employees?

Allowing employees to work from home generally requires a corresponding provision in the employment contract or the consent of the respective employees. If a corresponding works agreement exists employees may also work from home within the framework of said agreement without the consent of the employees.

However, given the current situation, we believe that there are good arguments that employers can ask employees in individual cases to work from home even without individual or collective agreements, provided that the necessary equipment, such as a laptop or business mobile phone, is made available to the affected employees. Furthermore, in such cases it is important to weigh up the interests of the employees in question against the employer's interests in effective health protection for the rest of the workforce: a duty of care, consideration and loyalty play a special and important role. 
 

4. Can employers order travel to coronavirus risk areas or send employees there?

Employers can have a right to send an employee to another location or on a business trip within their general right to give instructions under that employee's employment contract. However, they are only entitled to do so to the extent that the instruction is within the scope of reasonable discretion. If, for example, a travel warning from the Federal Foreign Office (or a warning from the World Health Organization (WHO)) or the RKI has been issued, an ordered business trip or posting to the risk area is no longer likely to be seen as within the scope of reasonable discretion. In this case, employees can have the right to refuse to work.

In other cases, the individual situation of the employees (such as a previous illness) can play a role in the decision process and lead to employees being allowed to refuse to travel. In these cases, the employee's entitlement to remuneration remains intact.
 
 

5. Are employers entitled to ask questions about a past stay in a coronavirus risk area?

During the risk period of the coronavirus spreading, employers may ask whether employees have stayed in a risk area e.g. during their annual leave. In this case, employees generally have to provide information about whether they were in a risk area but do not have to state their exact last whereabouts.
 

6. How can employers deal with individuals who have returned from coronavirus risk areas or employees with relevant symptoms?

If employees return from a coronavirus risk area or if employees show known symptoms of the coronavirus disease, employers can order the relevant employees to work temporarily from home or release them from their work duties in order to prevent any possible infection of other employees. This is in line with the employer's duty of care towards the rest of the workforce.

In the event of a release from work, the employees' right to employment takes second place to the duty and interest of the employer to protect the rest of the workforce and ensure the smooth running of the business. The period of release from work should be based on the incubation period of the coronavirus of about 14 days (recommendation of the RKI). The conditions described above under point 3 apply to work in the home office.

Remuneration must continue to be paid during a leave of absence and for working from home. Before returning to the company, employers may require affected employees to provide an informal medical certificate confirming that no infectious disease is present.
 

7. Can employers order short-term work?

In the event of difficulties in the company due to a lack of orders or delivery bottlenecks, as well as the threat of plant closures due to infection, it is within an employer's interest to order short-time work. However, employers can generally not unilaterally order short-time work. Instead, short-time work must generally be agreed individually with the employees affected. In companies with a works council, a corresponding works agreement should be agreed upon.

If short-time work is justifiably ordered the employees concerned may receive short-time work compensation, provided the relevant conditions are met. The employer can apply for short-time work compensation from the responsible employment agency after a prior notification.

The conditions for granting short-time work compensation have been relaxed in the light of the current crisis. The changes initially involve lowering the threshold for receiving short-time work compensation. An entitlement will now exist if 10% of the employees employed in the operation achieve a monthly gross salary that is reduced by more than 10% due to the loss of work.

In addition, it will be possible to receive short-time work compensation in the area of lease of employees.
Furthermore, the Federal Employment Agency will also in future fully reimburse the social security contributions borne solely by employers for employees receiving short-time working allowances.
For employees who take part in further training while receiving short-time work compensation, employers are to be reimbursed half of the social security contributions.

The statutory period of entitlement to short-time work compensation is 12 months. However, it can be extended to up to 24 months by a statutory order of the Federal Ministry of Labour and Social Affairs. 
 

8. Can employers ban private meetings of colleagues?

The employers' right to issue instructions is limited to the employment relationship. Even if employers have released employees from work as a precautionary measure or due to a suspected case, they cannot ban employees from meeting with their colleagues in their free time.

However, there is nothing to be said against appealing to the employees' sense of responsibility that their own time off also serves the health protection of their colleagues.
 

9. What rights do employees have when nurseries, day care centres or schools close?

Difficulties can arise for employees when day-care centres, nurseries or schools close and they therefore have to care for their children during their working hours. As a rule, employees may be absent from work with pay for a "non-substantial period of time" which is usually five to ten days, unless they can make use of other childcare options. In this case, employers can also instruct employees to take leave, reduce overtime or, under certain circumstances, work from home.

Something different may apply if other regulations on temporary incapacity to work have been agreed in the employment contract or a collective agreement. Employees are entitled to unpaid leave of absence to care for their children, if they cannot be cared for elsewhere and that they cannot be referred to holidays or overtime reduction.
 

10. Should employers draw up an emergency plan?

It is important to develop a uniform contingency plan for the outbreak of infectious diseases. This should define the procedure that would be adopted if infectious disease occurs amongst employees. In particular, it is advisable to determine what essential roles and functions would need fulfilling in order for the company to maintain operations as normal.

When creating the plan, it is important to involve a number of members of the workforce, the company doctor and occupational health and safety officer to guarantee a functional and effective procedure. If a works council exists, it must be involved too as many of the planned measures, such as overtime regulations, rules of conduct or the assignment of activities other than those contractually agreed, require mandatory co-determination.
 

11. Are employers allowed to order fever measurements to be taken to "control entrance" to  the company premises?

When visitors arrive at the office, employers can ask to take their temperature and prohibit visitors from entering the premises if the visitor refuses to comply or shows an elevated temperature. This procedure is covered under the employers' householder's rights. However, discriminatory entry restrictions such as not allowing someone to enter because they are Asian (this is where the disease was first recorded) is not legal.

Employers must observe the general personal rights of their employees. That said, arbitrary health checks when entering the workplace are not permitted. However the current situation is exceptional and it is considered justifiable to carry out a general temperature measurement of employees, even if there is no concrete or confirmed suspicion of an infection. Data protection regulations, including the duty to inform anyone concerned when processing personal (health) data must be observed. In addition, procedures must be carried out equally across all employees. In such cases, a corresponding order is covered by the employer's right of direction.
 

12. What are the consequences of an official ban on employment or an official quarantine?

In the event of an official quarantine order, affected employees are entitled to compensation from the employer for loss of earnings for a period of up to six weeks in accordance with the German Protection Against Infection Act (Infektionsschutzgesetz). According to the Act, employers can have their expenses reimbursed by the competent state authority which is usually the local health or pension office. From week seven, employees are entitled to sickness benefits. When asserting claims for reimbursement, an application deadline of three months after the start of quarantine must be observed.

Marcus Kamp
Partner - Germany
Marcus.Kamp@fieldfisher.com






Marcus Iske
Partner - Germany
Marcus.Iske@fieldfisher.com






Dr. Fabian Reissinger
Partner - Germany
fabian.reissinger@fieldfisher.com

1. What is your government's response to protecting workers as a result of Corona-virus?

 The Irish Government has recommended that people should continue to go to work, but those who can work from home should do so. This is a recommendation only and does not have strict legal status. However, government recommendations in this area are being followed by many employers, particularly those whose employees can work remotely. The Irish Government is also introducing emergency legislation, to provide increased state income support (social welfare) to employees for a maximum of 2 weeks medically required self-isolation or for the full duration of absence from work following a confirmed diagnosis. The objective is to ensure that workers will not be afraid to self-isolate on financial grounds.

 

2. Working from home – Are employers continuing to pay employees who work from home?

 Yes. The basic position is that if an employee is available for work and willing to present for work, then they are entitled to be paid as normal. Employees who work from home by arrangement or by direction of their employer should be paid their salary, as normal. Failure to comply with contractual obligations to pay employees in circumstances where they are available for work may lead to breach of contract and/or a statutory payment of wages claims against the employer. Employees do not have a statutory right to insist on remote working but, where it is operationally possible, the majority of employers are permitting this.
 
 

3. What other considerations should employers take into account when allowing employees to work from home?

 Ireland has many multinational employers and remote working for some employees is not uncommon. Where employees work from home, their home becomes their workplace. As such, the same legal protections and employer obligations apply to that workspace, as if they were in the traditional office workspace. Some employers have specific remote working policies. More generally, employer concerns fall primarily from into the following categories; the employees' health and safety in their remote workspace, maintaining a record of employee working hours, data protection, and ensuring that steps are taken to mitigate the risks of loss or distribution of confidential data for remote workers.

 

4. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?

 To date, there have not been widespread forced closures. If an employer voluntarily closes a workplace but employees are not able to work remotely, the employer must pay employees as normal. If employers are advised by the government Health Service Executive (HSE) to temporarily close their place of work due to COVID-19, but their employees are not able to work remotely, it is expected that they will continue to pay employees as normal. If an employer is unable to pay or continue to pay employees who are at home and unable to work remotely, those employees will be considered to have been temporarily laid-off and can apply for an income support in the form of a Jobseeker's Payment or Supplementary Welfare Allowance.

 

5. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

 The basic position is that if an employee is available for work and willing to present for work, then they are entitled to be paid as normal. The converse is that, if they are unable to present for work, then they are not entitled to pay as normal. The only exception to this is statutory force majeure leave (up to 3 paid days in a year) where an employee needs to stay at home to care for a close family member due illness or injury, In practice however, there may be some softening of this strict position by at least some employers. The Irish Government has urged all employers to support national public health objectives by considering a range of arrangements with their employees. These may include compassionate leave, enabling employees to take their accrued annual leave or bring forward an annual leave entitlement which has not yet accrued, and facilitating employees to take parental leave, waiving the usual notice requirement.


Barry Walsh
Partner – Ireland
Barry.Walsh@fieldfisher.com





Julie Austin
Partner – Ireland
Julie.Austin@fieldfisher.com

 

 1) What does the government's exit strategy look like in your jurisdiction?

• Is there any proposed timetable regarding this return to work?

The Irish Government has applied a public health based risk approach in relation to re-opening society and the economy. It has published a 5 Step Plan entitled "Roadmap for reopening Society and Business".

This addresses a number of matters including returning to the normal place of work over 5 Phases, with the final Phase commencing on 10 August 2020.

The Government still advises those who are able to work from home to continue to do so other than people who work alone, organisations where employees have low levels of daily interaction with people and where social distancing can be maintained. Even the fifth/final phase still advises those who are able to work home to continue to do so.

The Phases are as follows:

Phase 1: 18 May 2020

• Permit phased return of outdoor workers (e.g. construction workers, gardeners, including people working on allotments). Social distancing requirements continue to apply.

• Continue to maintain remote working for all workers / businesses that can do so.

Phase 2: 8 June 2020

• Permit phased return of workers, such as solitary and other workers that, due to nature of work, can maintain 2m distance constantly. Social distancing requirements continue to apply.

• Continue to maintain remote working for all workers / businesses that can do so.

Phase 3: 29 June 2020

• Organisations where employees have low levels of daily interaction with people and where social distancing can be maintained.

• Continue to maintain remote working for all workers / businesses that can do so.

Phase 4: 20 July

Organisations where employees cannot remote work to be considered first for return to onsite working arrangements.

• Depending on business, shift work, staggered hours etc should be operated to increase % of workforce available for work in any 24-hour period, as long as they can limit the number of workers interacting with each other.

• Continue to maintain remote working for all workers / businesses that can do so.

Phase 5: 10 August

Return to onsite working applicable across all sectors:

2) What are the employment law related measures taken by your government to re-activate the economy after the lock-down?

The measures taken are mainly related to Health & Safety in the workplace. A mandatory protocol has been issued entitled the "Return to Work Safely Protocol". The Protocol supports employers and workers to put measures in place that will prevent the spread of COVID-19 in the workplace when the economy begins to slowly open up, following the temporary closure of most businesses during the worst phase of the current pandemic. The Protocol should be used by all workplaces to adapt their workplace procedures and practices to comply fully with the COVID-19 related public health protection measures identified as necessary.

Other than Health & Safety, there are only limited employment law changes introduced. The only notable change in that regard is a restriction on employees' rights to seek statutory redundancy when on temporary lay off. Normally, if a lay-off situation continues for 4 consecutive weeks (or 6 weeks in the last 13 weeks), employees may claim a statutory redundancy payment from their employer. However, the Emergency Measures in the Public Interest (COVID-19) Act 2020 suspended an employee's ability to do this until further notice.

3) After the obligation - imposed by the government - to home telework stops, how should companies continue in organising teleworking?

The Roadmap for reopening Society and Business has encouraged employers facilitate employees to continue to work remotely where possible to do so, at least until Phase 5 of the reopening in August 2020. The Roadmap for Reopening Society & Business also suggests that the Government will bring forward initiatives to promote remote working.

Nevertheless, there is no absolute or general right to remote working or indeed any type of flexible arrangement beyond contracted terms. Legal guidance for employers and employees alike is limited.

Some organisations will simply not be amenable to longer-term home working. Sectors and industries will naturally differ on how practicable widespread home working can be and some employers will undoubtedly prefer a return to more familiar working models.

Looking ahead, it is reasonable to anticipate tension between some employers and employees and we can expect stand-offs with some employees resisting a return to the traditional workplace on either health and safety grounds or due to childcare constraints. Other employees may simply prefer working from home, in light of a good recent working experience and may resist calls to return.

These are unprecedented and fluid times. As such, employers would be well advised to consult extensively and to tread cautiously in all such situations, seeking to reach an accommodation if possible. Flexibility and reasonableness is expected from employees as well as their employers. However, any disciplinary action against employees who refuse to return to work, particularly due to health or childcare concerns, should be a last resort.

4) If your company has difficulties with the re-start, what general legal (employment law related) options are available to reduce costs?

The same options that have always existed for employers in Ireland continue to be available. These include:

• Temporary lay-offs or reduced working hours

• Pay Cuts

• Cessation of fringe benefits

• Redundancies

 
5) Aspects of employee privacy at the workplace after COVID-19

Employers in Ireland have a duty to provide a safe place of work to all employees. However, it must balance this with data protection and privacy obligations to employees.

An employer can disclose to other employees that an employee has tested positive for COVID-19, without disclosing any identities. In addition to an employer not disclosing the identity of an employee who has tested positive, they should not disclose anything specific about his/her medical condition or symptoms, to others employees.

While the Protocol refers to the possibility of temperature testing, currently there are no specific government guidelines recommending the introduction of temperature monitoring as a standard within the workplace.
Specific guidance from the Irish Data Protection Commissioner is awaited.


Barry Walsh
Partner – Ireland
Barry.Walsh@fieldfisher.com






Julie Austin
Partner – Ireland
Julie.Austin@fieldfisher.com

 

1. What is your government's response to protecting workers as a result of Corona-virus?

In order to protect workers during the Corona-virus emergency, the Government has taken several measures:

• Simplification of the procedures for using smart-working:

Smart-working can be carried out at the choice of the employer even without a specific individual agreement with the employee;
The employer can communicate massively the names of the employees in smart-working and provide them security information also electronically, through a form made available by INAIL (The Italian National Body for insurance against industrial injuries).

• The employer who doesn’t use smart-working is bound to comply with some given security measures in the workplace: granting a distance of at least one meter between the various employees, providing workers with safety devices (such as gloves and masks).
• Finally, companies have been requested to allow employees to take holidays and leave, where possible.

 

2. Working from home – Are employers continuing to pay employees who work from home?

Employers are bound to pay the salary to their employees in smart-working.

 

3. What other considerations should employers take into account when allowing employees to work from home?

In case of employees in smart-working, employers have to satisfy job security obligations. As mentioned, in this emergency phase, companies are allowed to provide the related security information electronically, through a form made by INAIL which contains all the necessary information on the matter. 
 
In addition, employers should advise employees in smart-working to observe the necessary precautions to guarantee the confidentiality and integrity of the data processed, in compliance with current legislation on privacy.

 

4. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?

Following the Corona-virus emergency, the Italian Government has provided forms of income support for all private employers of the areas most affected by COVID-19 (Regions of Lombardia, Veneto and Emilia-Romagna) and an allowance of € 500/per month for three months for self-employees of the same areas.
 
In order to broaden the scope of these measures to whole Italy, the Italian Government is enacting a Law Decree - which should be issued during next weekend - which introduces special provisions regarding social safety nets. In particular, this measure will provide, for employers already included in the field of application of social safety nets, the introduction of a new reason called "emergency COVID-19" which will entitle the ordinary wage supplement treatment for a maximum period of 9 weeks.
 
For those employers to whom social safety nets are not applicable, it will be provided for a particular redundancy fund in case of suspension or reduction of working hours as a consequence of the epidemiological emergency from COVID-19, always for a maximum of 9 weeks.
 
 

5. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

Employees who need to stay at home to look after children or dependents because schools or care homes have been closed, can apply, where possible, for smart-working.   
         
In case smart-working would not be possible, the Italian Government is going to provide for appropriate measures such as special parental leave and special vouchers to be used to pay baby-sitter during this school closing period due to the emergency.


Silvia Lucantoni
Partner - Italy
Silvia.Lucantoni@fieldfisher.com
 

1) What does the government's exit strategy look like in your jurisdiction?
 
The Italian government has planned a gradual exit from the lock-down period organised into two distinct phases: phase two and phase three, which will represent the return to normal post-emergency life.
 
In particular, with the Prime Ministerial Decree of 26 April 2020, the restriction measures imposed during the most acute moment of the pandemic have been loose.
 
Specifically, it had been provided that in phase two, the one we are currently going through, there would be a gradual reopening of all production activities, according to the following deadlines:
 
From May 4 - resumption of industrial activities and wholesale commercial plants;
From May 18 - reopening of retail commercial activities, reopening of bars, restaurants and personal care activities (hairdressers, barbers, beauty centres);
From June 1st - opening of regional and national borders.
 
According to the Italian Government, these measures may be subject to changes depending on how the infection rate proceeds. On this basis, a date has not yet been set for the transition to phase three.
 
2) What are the employment law related measures taken by your government to re-activate the economy after the lock-down?
 
In the current phase two, the Italian government is focused on the security obligations that companies, which reopen following the end of the lock-down, must follow to avoid contagions from COVID-19.
 
In particular, on 24 April 2020 a technical document was issued by INAIL, the National Institute for Insurance against Accidents at Work, aimed at assessing the risk index of the various production activities and to outline prevention strategies according to the following guidelines:
 
Management of workspaces: the workspaces must be remodelled with a view to social distancing compatible with the nature of the production processes. For environments where several workers operate simultaneously, it is necessary that workstations are adequately spaced from each other and that separating barriers, such as perspex panels, are set up;

• Organization and working hours: working hours can be modified in order to favour social distancing by reducing the number of employees in the workplace at the same time and avoiding gatherings at the entrance and exit with flexibility of schedules;
• Information and training: these measures must be adequate, contextualized and, at the same time, adapted to the specific working environment, in order to allow employees to understand exactly the risks connected to COVID-19;
• Hygienic and sanitizing measures of the rooms;
• Use of masks and personal protective equipment (PPE) for the respiratory tract;
• Health surveillance and protection of fragile employees (employees over 55 years of age or suffering from chronic diseases or with states of congenital or acquired immunosuppression).
 
On April 24, 2020, the "Shared protocol for the regulation of measures to combat and contain the spread of the COVID-19 virus in the workplace", signed on March 14, 2020 between the Government and the Social Partners, was updated.
 
This Protocol provides in summary that the following charges for companies:
 
• INFORMATION: the company, through the most suitable and effective methods, informs all workers and anyone who enters the company about the provisions of the Authorities, delivering and / or posting information brochures at the entrance and in the most visible places of the company premises.
 
The information must relate, among other things, to the obligation to stay at home in the presence of fever (over 37.5 °) or other flu symptoms and to call the family doctor and health authority;
 
• PROCEDURE FOR ENTRY INTO THE COMPANY: before entering the workplace, staff may be subjected to body temperature checks and if this temperature exceeds 37.5 °, access to the workplace is not allowed;
 
• CLEANING AND SANITIZATION IN THE COMPANY: the company shall ensure daily cleaning and periodic sanitization of the premises, environments, workstations and common and leisure areas;
 
• PERSONAL HYGIENE PRECAUTIONS: it is mandatory that the people present in the company take all the mandated personal hygiene precautions;
 
• PERSONAL PROTECTION DEVICES: the company shall supply adequate PPE and in particular masks and gloves;
 
• COMMON SPACE MANAGEMENT (CANTEEN, CHANGING ROOMS, SMOKING AREAS, BEVERAGE AND / OR SNACK DISTRIBUTORS ...): access to common areas must be contingent with the provision of continuous ventilation of the premises, a reduced time of occupation inside these spaces and the maintaining of a safe distance of one metre between the people who occupy them;
 
• EMPLOYEE ENTRY AND EXIT MANAGEMENT: the company will employ staggered entry / exit times in order to avoid contact in common areas as much as possible;
 
• INTERNAL MOVEMENTS, MEETINGS, INTERNAL EVENTS AND TRAINING: movement within the company site must be limited to the minimum and in compliance with company guidelines, both for meetings and for training activities, smart working is preferred;
 
• MANAGEMENT OF A SYMPTOMATIC PERSON IN THE COMPANY: in the event that a person present in the company develops fever and symptoms of respiratory infection such as cough, that person must immediately declare it to the personnel office. The Company shall immediately proceed with that person's isolation from others present from the premises, and according to the provisions of the health authority, the notification to the relevant health authorities.
 
Companies that have reopened following the relaxation of restrictions must follow these rules and, where possible, must sign an ad hoc corporate protocol with union representatives, which takes into account the peculiarities of the various production companies.
 
3) After the obligation - imposed by the government - to home telework stops, how should companies continue in organising teleworking?
 
In Italy, smart-working was never imposed during the emergency, although it was advocated as a preferred way of working as of February 23, the date of entry into force of Legislative Decree n. 6/2020, containing "urgent measures for the containment and management of the epidemiological emergency from COVID-19, applicable on the entire national territory".
 
Even during the current phase two, the safety protocols adopted by companies and unions push for the use of smart-working where compatible with the tasks being performed, among the recommended tools to ensure greater worker safety against the risk of contagion from COVID-19.
 
This is at present even possible without the individual agreement of the worker.
 
The recent Law Decree n° 34/2020 (so called “Decreto rilancio”) - governing various aspects of the current phase two- issued on May 20, 2020, has provided that  private sector workers with children under the age of 14 are entitled to perform in smart-working, until July 31, 2020.
 
4) If your company has difficulties with the re-start, what general legal (employment law related) options are available to reduce costs?
 
The Law Decree18/2020, called "Cura Italia Decree", provided for a stop to dismissals for objective reasons until 16 May 2020.
 
The above mentioned Law Decree 34/2020 has extended this stop until August 17, 2020.
 
Consequently, in this period, companies - even in the case of those with proven economic difficulties - are forbidden to dismiss, individually or collectively, due to a contraction of work.
 
In order to keep costs down, companies are entitled to use the social safety nets provided to face the epidemiological crisis.
 
In particular, the aforementioned Law Decree 18/2020 provided for the possibility of accessing one of the following social safety nets: Ordinary Redundancy Fund, Ordinary Check (so-called FIS) or Derogation Redundancy Fund, depending on the number of employees employed and the sector of membership, always with the reason COVID-19.
 
These measures initially had a maximum duration of nine weeks, to end by 31 August 2020.
 
The aforementioned Law Decree n. 34/2020 has provided for the extension of a further nine weeks that must end by 31 December 2020.
 
In these cases, in which there is a total or partial suspension of the work, the relative remuneration is not paid by the company, but by INPS (National Social Security Institute).
 
Furthermore, the Decree Law 18/2020 has provided for ad hoc parental leave for parents of children under the age of 12 for a maximum duration of 15 days, a duration that the issued Law Decree n. 34/2020 has increased to 30 days .
 
Also in this case, the employer does not have the burden of paying the remuneration to the employees concerned, who always receive 50% of their salary from the INPS.
 
In this case, however, workers shall submit the relevant request.
 
5) Aspects of employee privacy at the workplace after COVID-19
 
The COVID-19 crisis has not altered the principles and rules on which employee privacy protection is based. Regardless of the technology and tools used, companies that offer home-work tools to their employees must ensure that the processing of workers' data complies with the principles and rules of the General Data Protection Regulation (GDPR).
 
The only exception to employee privacy is represented by the detection of temperature to employees prior to their entry into the company, as prescribed by the aforementioned "Shared protocol regulating measures to combat and contain the spread of the COVID-19 virus in the workplace" stipulated between the government and the social partners.
 
In this case, the company is required to provide the employee with a specific information, in which the methods of data processing and the purpose of their use must be explicitly provided.
 
Privacy implications can also occur in the event of a request for employee submission to the so-called serological tests, aimed at identifying the possible positivity of the subject to COVID-19.
 
In this case, however, the performance of this test can only take place with the consent of the worker who must sign a specific information provided to him by a doctor, certified by the body that physically takes care of carrying out the relevant sampling and analyzing the result.


Silvia Lucantoni
Partner - Italy
Silvia.Lucantoni@fieldfisher.com

• There is no general lockdown. The Dutch government has introduced social distancing measures and employees are supposed to work from home where possible. Bars, restaurants, schools, day-nurseries and gyms have been ordered to close through 28 April 2020. Other businesses may remain open, but many have closed voluntarily. Rules are expected to be relaxed after 28 April 2020, but details are yet unclear.
• In addition, the government has introduced various financial measures to support businesses during the crisis. Most importantly from an employment perspective, employers who suffer a 20+ percent drop in turnover are entitled to compensation under the Salary Subsidy Scheme.

• The Salary Subsidy Scheme was introduced on 17 March 2020. The scheme is locally known as "NOW" (after the Dutch acronym).
• Employers who suffer a drop in revenue of 20 percent or more qualify for compensation. The employer does not have to prove any causal link with the coronavirus.
• Compensation covers the employer’s salary costs in March, April and May 2020. Compensation is up to 90% of total salary costs in this period, depending on the drop in revenue. For example:
  •  100% drop in revenue: 90% of salary costs compensated.
  • 50% drop in revenue: 45% of salary costs compensated;
  • 25% drop in revenue: 22.5% of salary costs compensated.
• The drop in revenue is calculated on the basis of the difference between:
  • Revenue of the entire group in the Netherlands during a consecutive 3 calendar month period starting on 1 March, 1 April or 1 May 2020 (to be selected by the employer); and
  • 25% of revenue of the entire group in the Netherlands in 2019.
• Compensation extends to all employees, regardless of whether they are furloughed (or are actually very busy). This includes employees on permanent, fixed term and other flexible contacts (such as on-call, ‘min-max’ and zero hours contacts). Salary costs for temporary workers are also covered, but compensation must be claimed by the temporary employment agency.
• Compensation is capped at EUR 9,538 gross per employee per month. This amount is increased with a fixed 30 percent allowance for holiday allowance, as well as pension and social security contributions borne by the employer. Consequently, total compensation is effectively capped at (almost) EUR 14,200 gross per employee per month.
• The employer must comply with the following obligations:
  • The employer uses compensation for the payment of salaries only and maintains salary costs "as much as possible" at the same level. This (vaguely worded) requirement most likely implies that employees should remain entitled to 100% of their salary from March through May 2020. We expect that voluntary temporary paycuts are permitted however (it being understood that compensation will be reduced accordingly).
  • From 18 March through 31 May 2020, the employer cannot make employees redundant. If the employer does make employees redundant, compensation for the redundant employees must be paid back plus a 50 percent penalty. The employer remains permitted to terminate employees for other reasons than redundancy (performance, misconduct, long-term illness etc.).
  • The employer informs the works council, staff representation committee or employees about the application for compensation under the Salary Subsidy Scheme. This is an information requirement only, not a formal consultation process.
• Applications for compensation can be filed until 31 May 2020. Compensation is paid out to the employer (and not as a benefit to employees). Compensation is initially paid as an 80 percent advance payment based on salary costs in January 2020 and the expected drop in turnover in the relevant period. The definitive amount of compensation will be determined later based on the actual salary costs and the actual drop in turnover.
• As mentioned, compensation covers the employer’s salary costs from March through May 2020. After that, the government will re-assess the situation and may opt to extend the scheme.

• Yes, employees continue to be entitled to their normal salary and perquisites.

• Depending on the nature of the work, it may be advisable to implement policies specifically aimed at working from home for matters such as IT, data protection, occupational health and safety and working time. Monitoring of employees must comply with data protection and privacy laws and is usually subject to prior works council consent.

• Employees are normally put on leave in this situation. Most likely employees continue to be entitled to their normal salary and perquisites, but up to 90 percent of salaries may be recoverable under the Salary Subsidy Scheme (see above). 

• There are no specific rules for this situation. As a general rule, employers will be required to accommodate employees as much as reasonably possible, e.g. by allowing them to work from home. If working from home is not feasible, the employer will normally be required to grant leave. Whether this is paid or unpaid leave will depend on the circumstances. In case the employee is ill, normal rules regarding continued payment of salary during sick leave apply (up to 24 months). Again, up to 90 percent of salaries may be recoverable under the Salary Subsidy Scheme (see above).

Frank van Uden
Partner –The Netherlands
Franck.vanUden@fieldfisher.com






 

1. What is your government's response to protecting workers as a result of Corona-virus?

 Specific prevention of occupational hazards measures for health personnel have been approved. Private sector employers, due to safety regulations, have the obligation to promote working from home, they also should seek ways to suspend employment if there is any employee affected by the virus and the services cannot be rendered from home.

 

2. Working from home – Are employers continuing to pay employees who work from home?

 The employer has to pay the salary in full to those employees who work from home, without exception. In this regard, it is advisable to estipulate by means of the relevant agreement, that the employer will not assume any additional costs related to services rendered from home.

 

3. What other considerations should employers take into account when allowing employees to work from home?

 Specific company rules regarding working from home shall be established including among others, monitoring, attendance check, working time provisions (i.e. overtime), prevention of occupational hazards and BYOD policies, if applicable.

 

4. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?

 When the employees are not receiving a temporary illness benefit, their contract is in force for all purposes. Therefore, in the current scenario, the employer should promote a temporary suspension of employment contracts, which can be based on productive and/or organizational reasons when the employer cannot open its workplaces, this type of procedure involves a consultation period of a maximum of 15 days, with employee representatives -if there are no representatives, the employees have to elect ad hoc representations for the sole purpose of this negotiation-, who shall be informed in advance about the procedure (i.e 7 days to employee representatives and 15 days to employees without representation, although we expect an amendment on this requirement in the next few days). Note that when there is an agreement, the negotiation can be solved within one or two days and the employees can be affected as soon as the agreement is reached and informed to the Employment Authorities.
 
Another alternative is to suspend the employment contracts based on force majeure. This procedure is unilateral and does not involve any consultation period or prior notice to the employees; but requires a decision from the Employment Authorities. In particular, employers must request the Employment Authorities to declare the existence of a force majeure scenario, which is reserved to extreme cases directly affected by the pandemic situation (e.g. the Governments declares a general closure of the commercial activity in a certain area), and its analysed case-by-case.
 
 

5. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

 The Government is currently working on a future decree to address this specific situation and grant the relevant employees with a specific benefit. At this moment, if the employees have to stay at home to take care of children or any other family members, and do not have a temporary illness benefit, would have to either exercise their conciliation rights and request working from home –if that is possible- or to request a non-paid leave period for personal reasons; the employer is entitled to reject these requests but it has to provide objective grounds to deny it.

Talmac Bel Geronés
Partner – Spain
talmac.bel@fieldfisher.com






 

1) What does the government's exit strategy look like in your jurisdiction?

The President of Spain announced on 2 May 2020 the Government’s strategy of “de-escalation”, organising it in phases zero to four. The initial announced plan consisted of a jump to the corresponding consecutive phase every two weeks. Progressing to the next phase will depend on the evolution of the pandemic in each territory.
As of 4 May 2020, the country entered into phase zero, with the exception of a few territories – namely, the islands La Gomera, el Hierro, La Graciosa, and Formentera - which given their particular conditions and evolution were allowed to advance directly to phase one.

In that regard, several Ministerial Orders were published on 3 May 2020, detailing different relaxation measures against those adopted upon the declaration of a State of Emergency on 14 March 2020. This means that certain establishments are now allowed to open, although under restrictions in capacity and with the obligation to adopt certain safety and sanitary measures (Articles 7 and 8 of Order SND/386/2020).

Nevertheless, the country remains in a State of Emergency until 6 June 2020, with the possibility of a new 15-day extension, which will presumably be the last one that the Government is able to approve. That translates into a continuation of the obligation to allow and facilitate teleworking when reasonable and possible (Article 5 Royal Decree-law 8/2020), as well as of the right to paid leave (Royal Decree-law 10/2020) and to conciliation measures for employees who are in charge of taking care of family members (Royal Decree-law 8/2020). The preference for telework and the conciliation rights have been extended for two months, until 17 June 2020 (Article 15 Royal Decree-law 15/2020).

Once the State of Emergency is over, the COVID-19 force majeure temporary work suspensions and/or reduction of working hours are suspended according to Royal Decree-law 9/2020. Consequently, all the benefits - both procedural and in terms of Social Security contributions and unemployment benefits - that companies and employees have been granted will cease. Going forward, companies that have been granted approval by the relevant labour authority to apply such work suspension/reduction of working hours will have two options:

1. to resume their activities and start paying the entirety of salaries again, or

2. to consider adopting other measures such as temporary work suspensions for objective causes –which won’t enjoy the same benefits as the ones for force majeure derived from COVID-19, they will follow the standard procedure, obligations and benefits - or individual/collective dismissals for objective causes

2) What are the employment law related measures taken by your government to re-activate the economy after the lock-down?

So far, taking into consideration the focus on regulating the conditions of phase zero of the country’s de-escalation, the measures taken by the Government by means of Order SND/288/2020, of May 3rd, are the following:

1. Opening conditions

• Re-opening of retail and professional services with establishments under 400m2, except those inside malls.

• Limitation to 30% of the establishments’ capacity.

• Obligation to have a prior appointment in order to attend such establishments.

• Two meter separation in between persons.

• Specific opening hours only for persons of 65 years of age or older.

2. Home delivery and pick up

• The establishments that are allowed to re-open under this order may also establish systems of direct pick up by customers in an organized way and to avoid crowds.

• Restaurants may only conduct their activities through home delivery or pick up, setting a specific pick up schedule with customers that have placed an order by phone or internet.

3. Safety and hygiene measures

• Measures related to daily disinfection of establishments and uniforms, as well as of separation of two metres between persons in the establishments, among others, have been established.

4. Occupational risks prevention measures

• Persons with COVID-19 or symptoms of it, won’t be allowed to go back to their working place.

• Clocking in systems using fingerprints for identification will have to be substituted.

• The layout, turn rotation and other relevant conditions will have to be modified in order to ensure a minimum interpersonal distance of two meters.

• The distance in between seller and customer will have to be of no less than one metre if there are protection elements in between - or no less than two meters if there are not protection elements or barriers in place.

• The hygiene and distance measures will also need to be fulfilled in changing rooms, locker rooms, restrooms and common areas.

5. Collaboration with the services of occupational risks prevention
There is a duty to comply with all risk prevention obligations in place, provide employees with the necessary individual protection systems, and follow the Ministry of Health’s hygiene measures.

In that sense, it is advisable to contact a risk prevention service and follow the necessary measures in accordance with the level of risk exposure of the specific workplace; and establish a protocol of action for employees to be trained and informed about all protection systems and how to apply them towards clients and the resulting new business model.

Establishments that were already allowed to open during the State of Emergency (Royal Decree 463/2020) will have to adapt these new safety and hygiene measures.

 
3) After the obligation - imposed by the government - to home telework stops, how should companies continue in organising teleworking?

Article 5 of Royal Decree-law 8/2020 established the recommendation of teleworking up until 17 April 2020, and Royal Decree-law 15/2020 provided a two-month extension, until 17 June 2020, to prioritise telework where it is technically and reasonably possible and it does not require a disproportionate effort from the employee.
After such date (or after any further extension), telework may no longer be imposed on employees. It is mandatory, by law, to agree telework by means of an agreement between the company and the employee, which ought to be in writing. In addition, employees performing their duties through telework enjoy the same rights as those employees working from the company’s premises and the regulation of occupational risks prevention also apply.

In that sense, it is highly recommended to draft a telework policy within the company to regulate the specific aspects of telework as, beyond what has already been mentioned, the law does not provide further details on how it has to be performed.
 
4) If your company has difficulties with the re-start, what general legal (employment law related) options are available to reduce costs?

The main option available is a temporary work suspension and/or reduction of working hours for economic, organizational, technical or productive grounds.

Employers may also consider, when possible and in compliance with the law and applicable collective bargaining agreement, to carry out an irregular distribution of working hours in order to adapt to the new initial scenario upon re-start of their activity.

Finally, it is possible to reduce the salaries of employees by means of substantial change of employment conditions based on economic grounds (individually or collectively) and also to opt out of the collective bargaining agreement (a “descuelgue”) to modify employment conditions, such as minimum wages and benefits.
 
5) Aspects of employee privacy at the workplace after COVID-19

The provisions in regards to employee privacy at the workplace remain unaltered both throughout and after the COVID-19 crisis.

The law does not impose an obligation on the employee to disclose specific health conditions to their employer. Nevertheless, the new Ministerial Order SND/388/2020, of 3 May, does establish that employees with COVID-19 or symptoms thereof may not return to their working place when such working place is included within the establishments that may re-open in the current de-escalation phase.

• App to track-down immune and infected people (recommended by legislator).

• Consequent possibility of the employer to identify an infected employee.

Talmac Bel Geronés
Partner – Spain
talmac.bel@fieldfisher.com
 

1.         What is your government's response to protecting workers as a result of coronavirus?
 
The government has made changes to the Statutory Sick Pay (SSP) regime, to provide that SSP will be paid to employees and workers who have been told to isolate themselves or who are isolating themselves in accordance with published Public Health England advice, even if they do not have any symptoms.
 
Further changes have been announced to extend the benefit to those caring for somebody in their household who is in self-isolation and who is suffering coronavirus symptoms. These have not yet been implemented, though in practice relevant individuals will be covered by the SSP changes around self-isolation. SSP is paid at a statutory rate of £94.25, for a maximum period of 28 weeks.
 
Rules in respect of SSP will also change, meaning that individuals will be eligible for SSP from their first day away from work, rather than having to wait until their fourth day as was previously the case. Business with fewer than 250 staff will be able to claim back from the government 14 days' SSP (per employee) paid to staff affected by coronavirus. There will also be changes to the way that sickness absence and self-isolation is evidenced, to take pressure off general practitioners.
 
2.         Working from home – Are employers continuing to pay employees who work from home?
 
If the employee can complete all of their work as normal from home, they should receive their pay and benefits as usual. In some cases, employers may be able to vary employees' duties in order to ensure that they can remain fully productive while working remotely.
 
If employees can only carry out some of their usual duties and therefore cannot fill their working time, employers may come under pressure around pay if the situation persists for a significant period. Where employers are forced to consider reductions in pay, they should seek legal advice before taking any measures.
 
3.         What other considerations should employers take into account when allowing or instructing employees to work from home?
 
Employers should be alive to a number of issues:

• Employers will need to carefully think through and contingency plan for any operational issues that may arise out of groups of employees (or, in extremes, the entire workforce) working from home. Employers should ensure that employees have access to appropriate equipment (e.g. laptops and telephones), that IT systems are stress tested for increased use (e.g. Skype for business and other systems), and that employers have employees' contact details.

• Another area of focus will be data security and how information will be sufficiently protected whilst employees work from home on devices, for example through placing restrictions on employees working in public spaces and through the use of secure VPN connections. 

• Employers should continue to be aware of their duty to ensure the health, safety and welfare of their employees. For example, employers will need to consider whether employees have the equipment to safely work from home, whether their workstations are adequately set up to mitigate health and safety risks (to the extent practicable), and whether there are any measures that can be put in place to mitigate the mental health impact of being isolated and removed from the social work environment (e.g. Whatsapp groups with co-workers, a "buddy" system or regular catch-ups. 

• Employers will want to make the expectations of employees clear in terms of working time and output, to avoid misunderstandings. In certain sectors or businesses, there may be a concern that employees are distracted or even that they might use the opportunity to work much less hard than they would if in the office. Where there are specific concerns, employers can put in place enhanced monitoring. They will need to think through the data privacy implications of doing so and ensure that they are transparent in relation to any monitoring practices.

 
4.         What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
 
The starting point is that, where an employer has asked employees to go home and is not providing work, the employer will need to keep them on full pay. Employers may however have certain options, dependent in part on the terms and conditions in their employees' contracts of employment.
 
They may:

• Direct employees to use their annual leave allowance (this right is a statutory right – it need not be specified in employees' contracts of employment, though the contract can override it). This may be an attractive solution where the closure is likely to be short-term. If an office or business is likely to close for more than a few weeks, this is unlikely to be viable (and requiring employees to exhaust their holiday entitlement early in the year will have health & safety implications).

• Ask them to take temporary leave, either unpaid or on an agreed lower rate of pay. Employers are unlikely to have the power to do so in their contract, so arrangements will need to be agreed with employees and/or unions.

• Use "lay off" or short time working provisions in employees' contracts.

Where employers are forced to consider more significant structural measures, or where they are facing short-term cash flow problems, we recommend that employers seek further legal guidance on their options before designing business solutions.

 
5.         What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
 
Employees have a statutory right to take a "reasonable" amount of unpaid time off to deal with unexpected events affecting their dependants. Where, for example, a school suddenly closes, the employees may need one or two days off to make alternative arrangements, and so would be entitled to take this off as unpaid leave. If the employee is caring for a child suffering coronavirus symptoms, they may be entitled to SSP following changes to the sick pay rules.
 
Employers may also have relevant policies, such as a "time off for dependants" policy, and employers should remind themselves now of relevant provisions, and review these to ensure that they have thought through the business implications of large numbers of employees being forced to take advantage of them.
 
Depending on the circumstances, employers may want to explore putting in place additional support for employees who cannot work because of caring responsibilities, including flexible working, communal or business-sponsored childcare arrangements, loans, "fall-back" pay, or Employee Assistance Programmes.

Ranjit Dhindsa
Partner -UK
Ranjit.Dhindsa@fieldfisher.com






David Carmichael
Partner –UK
David.Carmichael@fieldfisher.com






Nicholas Thorpe
Partner –UK
Nicholas.Thorpe@fieldfisher.com