How to deal with a reduction of business during COVID-19 pandemic? Can I impose a reduction of working time to my employees?
One possible way to deal with reduction of business is to adjust working time schedule of the employees. If there are employees’ representatives operating at the employer, the employer can agree with them in a collective agreement or another written agreement on an uneven working time scheduling in form of a “working time account”. This enables the employer to adapt the working time schedule to the current demand on work. In general, the agreed (standard) weekly working time could be balanced during 30 months. This option is, however not available to employers where there are no employees’ representatives (trade unions, work council, employees’ confidant).
In case of downtiming, in general, the employer must pay to the employees who are not working (and stay at home), due to the closure or limitation of the employer’s activities, 100% of the employee’s average earnings. If there are employees’ representatives (trade unions, work council, or employees’ confidant) operating at the employer, the employer can agree with them on 60% compensation. If there are no employees’ representatives at the employer, the employer generally cannot unilaterally decide on the reduced compensation to the employees.
However, special rules were implemented due to the COVID-19 pandemic, which state that during an emergency situation, state of emergency and state of distress (“Emergency Situations”), if the employee cannot perform work (at all, or partially) due to the closure or limitation of the employer’s activities due to a decision of the respective authority or due to the Emergency Situations, the employees who are not working are by virtue of law entitled only to 80% of the employee’s average earnings.
In any case, the employees must receive the compensation at least in the amount corresponding to the statutory minimum wage.
Further, employers affected by reduction of business during COVID-19 pandemic are entitled to ask for allowance to maintain job positions during the Emergency Situations.
Employers that closed or limited their operations during the Emergency Situations based on the respective decision of the Public Health Authority are entitled to an allowance in the amount of 80% of the employee’s average earnings for each employee, up to a maximum cap of EUR 1,100 per employee. In case the employer paid a wage compensation of 60% of the employee’s average earnings, the maximum amount of the allowance is EUR 880.
Employers whose operations were not affected by the decision of the Public Health Authority, but they maintain job positions despite the fact that their sales decreased during the Emergency Situations, are entitled to ask either for payment of a part of employee’s wage compensation up to the amount of 80% of the employee’s average earnings for each employee, up to a maximum cap of EUR 880, or for a flat contribution to compensate part of the labor cost for each employee, with the amount of the contribution based on loss of earnings.
The total allowance that an applicant may receive via this government program is EUR 800,000.
What if I had just hired someone? Can I take my employment offer back?
The Slovak law does not specifically regulate employment offers as a binding instrument, it is therefore critical whether such process of offer and its acceptance may constitute a concluded employment contract. If the offer was an informal one, in particular with a clear reservation of it being subject to execution of an employment contract, then it can generally be taken back. If the offer included type of work and its brief characteristics, place of performance of work, salary conditions and date of start, was made as a contract proposal and such contract was already accepted, then there might be already a binding contract between the employer and the employee.
This means that the employer is bound by concluded employment contract and cannot withdraw the offer, without an agreement with the employee. The employer can withdraw from the employment contract only if: the employee does not start work on the agreed day without being prevented from it by an obstacle at work; the employee does not notify the employer on obstacle at work, which prevents the employee to start work on the agreed day in period of three days; or the employee was validly sentenced for a crime after the conclusion of the employment agreement.
Hiring can be, however deferred with the consent of the employee.
If a probation period was agreed with the employee in the employment contract in writing, the employment may be terminated by the employer on any day within the probation period for any reason or without stating a reason, by a written notice. Probation period is extended by the period of obstacles in work on the side of the employee. Probation period is thus not extended during the time when operation of the employer is closed due to a decision of the respective authority or due to the economic situation of the employer. Trial period on the other hand would be extended for the time during which employee takes care of their children and does not work for that reason or is on vacation.
Can I impose my employees to take their remaining days of paid leave?
The employer can determine the dates of the vacation after a consultation with the respective employee (the consent of the employee is not needed but the employee must be consulted). The employer should do so based on a “vacation plan”. In practice, the employers (mainly small or middle-sized businesses) often do not have any “vacation plan”, which is not a big issue if vacations are agreed with the employees and there are no disputes. If there are no employees’ representatives (trade unions, work council or employees’ confidant) operating at the employer, the employer can issue the vacation plan without having consulted it with the employees; otherwise, the employer needs to agree on the vacation plan with the employees’ representatives.
When determining the particular dates of the vacation, the employer must take into consideration its own tasks, on one hand, and justified interests of the employee, on the other hand.
It may be disputable whether, if the employer decides that the employee must take vacation in these times where there apply several restrictions concerning relaxation areas and leisure activities, the justified interests of the employee are still taken into consideration. However, the Slovak Labor Code explicitly permits that the employer may order a mass vacation (in general, maximum of two weeks) if it is necessary due to operation reasons. In our opinion, a situation where the employer has no work to assign to the employees would justify the need for the mass vacation. If there are employees’ representatives operating at the employer, the mass vacation would have to be agreed with them.
During the Emergency Situations, the dates of ordered vacation must be announced by the employer at least 7 days in advance, as opposed to 14 days normally. If the employee agrees, this time period can be further shortened.
How to deal with employees that cannot go to work/provide work from home, because they have to take care of their children?
Employers must excuse the absence at work of an employee who personally and for the whole day nurses a sick family member (direct relative, sibling, spouse, or a parent), who personally and for the whole day takes care of a child up to up to 11 years of age, or an older child with long-term unfavorable health condition, if the child was ordered quarantine of isolation, if school or other facility providing care for the child is closed by a decision of respective authority, or if the person who normally provides care to the child cannot do so for objective reasons. Employers must also excuse the absence at work of an employee who takes care of a child up to ten years of age, if, the person who normally provides care to the child (e.g. the other spouse) is required to attend a medical check or medical care in a health care facility provided that it was not possible to attend to such medical check or medical care outside of the employee’s working hours.
Employers do not pay any compensation to the abovementioned employees while they do not work.
Employees who do not work, because they take care of their children, or nurse a sick family member for the whole day are entitled to care allowance, paid by social insurance. Employees who take care of a child up to up to 11 years of age, or of an older child, with long-term unfavorable health condition; if the child was ordered quarantine of isolation; whose child’s school, or other facility providing care is closed by a decision of respective authority; or whose entrusted person who normally provides care to their child cannot do so for objective reasons; fall into category of employees whose absence at work must be excused and are also entitled to care allowance. Employees which nurse a direct relative, sibling, spouse, or a parent of a spouse also fall into this category.
Generally, the care allowance is provided only for a period of up to ten days with respect to each case requiring the provision of care to the respective person. Pursuant to the new legal regulation, during the Emergency Situations in relation to the COVID-19 pandemic, the allowance shall be provided for the entire period during which there is the need to provide care, or nurse in person and for the whole day the respective person.
What should I do if there is still some business to do? How can I anticipate the end of the lock-down?
If the operation of the company was not closed by a decision of the Public Health Authority, the company may continue its operation, provided all health and safety measures are met.
Each employer must continuously ensure health and safety at work, and for that purpose the employer shall adopt necessary measures including ensuring caution, required means/tools, and a suitable system to manage the work protection. In order to comply with this basic obligation of the employer, the employer shall hence adapt its operation and the rules in the field of H&S to the COVID-19 pandemic. These would include measures such as regular disinfection, cleaning, washing of hands, wearing of protective masks and other gear, limitation of personal meetings, limitation of travelling.
During the Emergency Situations, employers are also entitled to order a home office to the employee if the work agreed under the respective employment contract allows to do so i.e. if the agreed work can also be performed from home in the “home office” mode. Similarly, the employee is entitled to demand to perform work from home (i.e. the employer must permit it), if the work agreed under the respective employment contract allows to do so, unless there are serious operational reasons (on the employer’s side) not enabling such work.
Do I have the right to terminate contracts in this period?
Termination of contracts (termination agreements as well as termination by termination notice or immediate termination, if the required conditions are met) can validly take place. There are however no specific grounds added due to the current period.
The Slovak Labor Code protects certain group of employees – such as employees on a sick leave or employees on a maternity or parental leave – against the termination of employment by termination notice. This protection is extended during the Emergency Situations that the following employees are protected against the termination notice in the same way as the employees on a sick-leave: employees being in a quarantine or (ordered) “isolation”; employees nursing, in person and the whole day, a sick family member specified by law (the same category of nursing as specified in the question No. 4.); and employees taking care of, in person and the whole day, of children specified by law (the same category of taking care of children as specified in the question No. 4.).
Thus, as long as the employees are absent at work due to the abovementioned reasons, the employer cannot serve them a termination notice, save for exceptional cases. These exceptional cases include e.g. a serious breach of work discipline, or another (not serious) breach of work discipline.