RIGHTS AND OBLIGATIONS OF EMPLOYERS AND EMPLOYEES DURING THE STATE OF EMERGENCY
I Introduction
On 16 March, the Parliament of the Republic of Serbia declared a state of emergency in the Republic of Serbia due to the pandemic of the COVID-19 virus. The Decision to declare the state of emergency was published in the Official Gazette of RS no. 29/2020 and entered into force on the day of its publication.
Following the adoption of the above mentioned Decision, a series of decisions, measures and instructions passed, regulating different areas of life and work of the citizens of the Republic of Serbia, including the adoption of acts and instructions relating to the organization of work during the state of emergency, as well as rights and obligations of employers and employees during the state of emergency.
II Organizing work during the state of emergency
The Decree on Organizing the Activity of Employers During the State of Emergency (Official Gazette of RS No. 31/2020) provides principled guidelines for employers to act in relation to the organization of work processes in the circumstances of the state of emergency.
a) Work outside the premises of the employer
During the state of emergency, the employer is obliged to enable employees to perform work outside the premises of the employer (teleworking and work from home), at all workplaces where such work can be organized in accordance with the general enactment and employment contract.
If the general enactment and the individual enactment do not provide for this manner of work, the employer must issue that must contain:
- the duration of working hours,
- the manner of supervision of the employee’s work.
Furthermore, the employer is obliged to keep records of employees who work outside the business premises of the employer.
b) Work inside the premises of the employer
For an employer whose nature of activity is such that it is not possible to organize work outside of its premises, it is necessary to adjust its operations in the following manner:
- to arrange shift work, so that as few employees work simultaneously in one room as possible,
- enable all business meetings to be held electronically,
- postpone business trips in Serbia and abroad, in accordance with the authority’s ban/temporary restriction of entry and movement in the Republic of Serbia.
c) Protection and health of employees
In order to ensure the protection and health of employees, the employer is obliged to provide all general, special and extraordinary measures related to the hygienic safety of facilities and persons in accordance with the Law on Protection of the Population against Communicable Diseases („Službeni glasnik RS“ br. 15/2016).
The employer is obliged to provide the employees who are in direct contact with clients, i.e., share the work space with more than one person sufficient quantities of protective equipment (masks, gloves).
d) Employed parent with children under 12 years of age
The Ministry of State Administration and Local Self-Government adopted a Recommendation for organizing work in public administrations and state institutions, which primarily refers to employees of state bodies, public services and local self-government units. However, this recommendation should also be applied to employers in the private sector, if permitted by the activity of the employer.
According to the recommendation, especially vulnerable persons are persons with established chronic diseases and persons older than 60 years, and special protection is given to the parent of a child up to 12 years, especially if he/she exercises parental rights himself or if another parent is established with a work obligation. For these employees, it is necessary to enable work from home in accordance with the work plan and schedule of the employer.
If due to the activity and nature of the work of the employer, it is not possible to organize work from home, the employer is obliged to provide measures of protection and health of employees, as well as to organize work in shifts, so that as few employees and other engaged persons as possible work simultaneously in one the room.
A parent with a child under the age of 12 should be allowed to work from home by the employer, and if the work process is such that it is impossible to organize such work, it is necessary to arrange shift work so that the working parent's work schedule does not overlap with the work schedule of the other parent who also has a work obligation.
III Certain rights and obligations of employers and employees
a) Work from the home of an employee
The employer is obliged to provide to the employee performing work from home all the necessary conditions for smooth work from home as defined in Article 42 of the Labor Law.
This primarily refers to the necessary means of labor, which the employer is obliged to provide, install and maintain in accordance with the above mentioned provision of the Labor Law.
While performing work from home, an employee is entitled to a salary equal to the amount of employees performing work on the premises of the employer, but does not exercise the right to reimbursement for transportation expenses for departure and arrival from/to work, as well as to reimbursement of other expenses related to the organization of work in this manner.
b) Employees in quarantine and self-isolation
Employees who have been issued an act of self-isolation or quarantine by the competent authority shall be entitled to wage compensation.
Compensation for employees in self-isolation or quarantine is determined in accordance with the provisions of the Law on Health Insurance (“RS Official Gazette” No. 25/2019).
The employer pays the salary compensation for the first 30 days of absence, and upon expiry of the 30th day the salary compensation is paid by the Health Insurance Fund of the Republic of Serbia.
Employees who are in self-isolation or quarantine of the employer must notify by telephone or by electronic means, with the obligation to submit a scanned act of the competent authority attached to the electronic notification.
A certificate of temporary work disqualification, as well as a doctor's certificate of illness for an employee, may be submitted in the original by the employee or a member of his or her family when the reasons for which he/she was unable to provide the medical documents cease to exist.
c) Interruption of work that has occurred without the fault of the employee
In the event that the employer has a reduced workload or termination of work without the fault of the employee, the employer may refer the employee to the so-called “Compulsory vacation” and is obliged to pay him/her, in accordance with Article 116 of the Labor Law, a salary of at least 60% of the average salary of the employee in the last 12 months, provided that the salary cannot be less than the minimum wage in the Republic of Serbia.
An employer may, by a general enactment or employment contract, determine a higher amount of salary than 60% of the average salary of the employee in the last 12 months.
Sending an employee on a leave on these grounds may not exceed 45 working days in a calendar year.
Exceptionally, the employer may send the employee on a leave longer than 45 working days in a calendar year, but with the approval of the Minister.
d) Disruption of work due to an order of the competent state body due to a failure to provide safety and protection of life and health
In relation to Article 116 of the Labor Law, Article 117 of the Labor Law foresees a situation where the termination of work occurred by an order of a state body or an employer body for failure to provide safety and protection of life and health at work, which is a condition for further performance of work without endangering life and health of employees and other persons.
In these circumstances, the employer is obliged to pay the employees compensation in the amount determined by their general enactment and employment contract.
The Labor Law instructs that the amount of the remuneration shall be prescribed by a general enactment, which means that the employer has the discretion to determine its own amount.
In addition, the condition for application of this institute is not solely the decision of the competent authority, but such decision may be made by the competent body of the employer if it is not able to provide protection of the life and health of employees at work in the given conditions, which is a prerequisite of further work without endangering their life and health.
e) The right of an employee to use an annual leave
In accordance with the provisions of the Labor Law, depending on the job requirements, the employer decides on the time of vacation, with prior consultation with the employee.
The employer may send all employees or employees by organizational units for collective annual leave, whereby the employer makes a decision on annual leave stating the employees and organizational parts in which they work and is obliged to display it on the company bulletin board, at least 15 days before the day designated for the use of annual leave, whereby is deemed to have been served.
During the use of annual leave, i.e., collective vacation, the employee is entitled to the salary compensation in the amount of the average salary earned in the previous 12 months.
f) Absence of an employee on the basis of temporary inability to work or paid leave
An employee who is absent from work due to temporary inability to work is entitled to compensation of at least 65% of the average salary in the previous 12 months prior to the month in which temporary inability occurred, or up to 100% of the average salary in the previous 12 months before the month when temporary work inability occurred in the event of an occupational injury or occupational disease.
An employee is entitled to a salary compensation equal to the average salary in the previous 12 months during paid leave, in the case of marriage, childbirth, serious illness of a close family member and in other cases provided for by a general enactment or employment contract.
g) Absence of employee on the basis of unpaid leave
Pursuant to Article 78 of the Labor Law, the Employer may grant an employee leave without remuneration (unpaid leave) when the employee is entitled to a dormancy of employment rights and obligations, unless otherwise specified by law, general enactment and contract of employment for individual rights and obligations.
The employer does not have the right to refer the employee to unpaid leave without his or her request.
The existence of such a written request gives the employer justification for making a decision on the use of unpaid leave.
The length of unpaid leave is not defined by law, the employer and the employee shall agree on the period of its duration.
h) Redundant employees
If the employer determines that the need to perform certain jobs has permanently ceased, i.e., the reduction of the volume of certain jobs resulting in a reduction in the number of operators in those jobs, the employer is obliged to adopt a program for solving redundant employees, if it determines that due to technological, economic or organizational changes within a period of 30 days, the need for permanent employment of employees will cease, for at least:
- 10 employees with an employer who has more than 20 and less than 100 full-time employees;
- 10% of employees with an employer who employs at least 100 and a maximum of 300 full-time employees;
- 30 employees with an employer who has more than 300 full-time employees.
The program shall also be issued by the employer, who determines that at least for 20 employees the need to work will cease within the 90-day period, for the reasons stated in the previous paragraph.
In accordance with Article 158, paragraph 1 of the Labor Law, the employer is obliged to pay the employee severance pay before the termination of the employment contract.
If the employer does not pay the severance pay and terminates an employee’s work, the inspector shall return to work all those employees whose employer did not comply with the provisions of the Law.
The amount of the severance pay is determined by a collective agreement, a rulebook or an employment contract and may not be lower than the sum of one-third of the employee's earnings for each completed year of employment with the employer who is entitled to the severance pay.