LABOUR ASPECTS OF THE CORONAVIRUS EPIDEMIC

The Government of Hungary has declared a state of emergency for the entire territory of Hungary and introduced several restrictions to eradicate the coronavirus epidemic which caused mass disease in many other countries of the world. The adaptation to the circumstances given by the state of emergency and the changes in the legislation introduced by the government decree no. 47/2020 (III.18.) may cause great concern for both employers and employees, therefore we would like to summarize below the most important information and opportunities during this period taking into account the circumstances and the labour legislation.

According to the Act I of 2012 on the Labour Code, one of the employer’s main obligation is to ensure the requirements of health and safety, so the employer shall determine the employment conditions by paying increased attention to the changes of the epidemiological situation and the high risk of infection.

If the employer cannot ensure the requirements of health and safety, the employee has the right to refuse the work and decide not to work. However, in this case, the employee is obliged to be available for work in order to fulfil the employer’s further instructions, while the employee is also entitled to his/her base remuneration. It is important to emphasize that the employee shall not refuse to work solely because of fear.

To protect employees’ health and reduce the risk of infection, the employer may introduce extraordinary measures which aim to monitor the employees’ health, such as employees’ fever may be measured upon entering the workplace.

When the work is not bound by the constraints of place due to the nature of the job and the employee can perform his/her employment obligations from home, the employer may unilaterally  order the performance of the work in the framework of the so-called „home office” for the duration of the state of emergency plus thirty days.

As home office work is considered as normal work, both employer and employee shall comply with all the rules applicable for the employment relationship during this period, for example the employer is obliged to pay remuneration to the employee and in particular, the employer shall ensure the working conditions at home. Of course, it is possible to conclude an agreement between the parties based on which the employee undertakes to ensure the conditions for home office, including the necessary technical devices.

If home office work is not feasible as the employee cannot perform his/her work from home, there are some other alternatives to deal with the reduced workload and limited opening hours caused by the state of emergency.

One of such alternatives is, if the employer grants leave to the employee from the days of the employee’s annual leave. In this case it shall be taken into account that employers shall allocate seven working days of the annual leave in a given year in not more than two parts, at the time requested by the employee and the employee shall notify the employer of such request at least fifteen days in advance. The remaining days of the annual leave shall be scheduled by the employer.

The institution of unpaid leave may not be the most advantageous for the employee but offers a temporary solution for the maintenance of the employment relationship and the survival of the epidemiological situation. It shall be emphasized that unpaid leave is a bilateral agreement that requires the mutual consent of the employer and employee, so the employer is not entitled to order unilaterally the unpaid leave, but of course, parties can agree on this matter. Further disadvantage of the unpaid leave from the employee’s view is that the social security relationship is interrupted based on the section 8. § a.) of Act LXXX of 1997 on the persons entitled to the social security services, private pensions and the coverage thereof during the period of unpaid leave.

If the employee is unable to fill the working time in its entirety due to the reduced workload, instead of the leave, there is an opportunity to amend the provisions regarding the daily working time of the employment contract in a way that employer employs the employee on a part-time basis during the state of emergency instead of full-time basis.

In theory, the employer may alter the work schedule upon the occurrence of unforeseen circumstances in its business or financial affairs, at least ninety-six hours in advance before the start of the scheduled daily working time. However, during the period of the state of emergency and for another 30 days after the termination of the state of emergency, the employer is entitled to diverge from this provision which means that the employer may alter the work schedule a few hours in advance before the start of the scheduled working time.

It might be possible that the employer fails to fulfil its employment obligation even to limited extent. The reasons for the employer’s failure to provide the employment shall be considered. In case the employer fails to fulfil its employment obligation due to reasons other than unavoidable external reasons, the period of unemployment shall be considered as downtime and the employee shall be entitled to his/her basic remuneration.

At the same time, the reference to downtime may be doubtful from the point of view of whether the present epidemic and its result, the state of emergency is considered as unavoidable external reason or not, if it is considered as unavoidable external reason, the rules of downtime shall not be applied and the employee is not entitled to receive his/her base remuneration. To be able to answer the question whether the rules of downtime shall be applied in the case of an employee, each case needs to be assessed individually.

If none of the above-mentioned alternatives offers an appropriate solution to deal with the virus situation and the employer is not able to employ the employee due income loss, the employer may terminate the employee’s employment relationship by giving notice. According to the relevant provisions of the Labour Code, an employee may be dismissed for reasons in connection with the employer’s operation, including the case when the employer is not able to employ the employee due income loss and other economic reasons and the employer is required to implement redundancies. The employer may not terminate the employment relationship by referring solely to the epidemiological situation, but the employer may terminate the employment relationship due to income loss as a result of the virus situation. The employer shall prove its income loss as the reason for dismissal with exact data. There is certainly no need to include these data in the dismissal notice itself, but the employer shall be able to prove the exact reason for dismissal in the event of any later, possible dispute. In this case, the applicable legislation of the termination shall be applied, for example the employee shall be entitled to remuneration during the notice period and to severance payment if the legal requirements of severance payment apply.

Quarantine may be ordered to slow down the spreading of the virus. During the quarantine the employee is not able to go to work due to official prohibitions of authorities which means the rules concerning downtime shall not be applied and the employee is not entitled to remuneration during this period. However, based on the 44. § g.) of the Act LXXXIII of 1997 on the Compulsory Health Insurance Services the employee is considered as incapacitated and entitled to sick leave during the period of quarantine. Of course, this section applies if the employee cannot perform his/her work from home.

In the sense of the provisions of the government decree no. 47/2020. (III. 18.), the employer and employee may diverge from the provisions of the Labour Code in a separate agreement which means that parties may set out provisions which they would not be able to lay down in their employment contract due to the compulsory provisions of the Labour Code. However, such agreement shall override the employment contract for the duration of the state of emergency plus 30 days after its termination.

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