COVID-19 and new employment measures

Introduction
Healthy and safe workplaces
Privacy aspects of information requests
Employees' obligations
Employers' payment obligations
Home office and remote working
Comment

Introduction

The appearance and spread of the coronavirus (COVID-19) in Hungary has made extraordinary measures necessary. As such, on 11 March 2020 the government declared a state of emergency and introduced numerous preventive measures, with practically immediate effect.

Primarily, the handling of the pandemic and disease prevention is the task of state institutions. In that regard, the authorities have already introduced various measures.

Since 11 March 2020, additional new measures have been adopted. For example, on 18 March 2020 the government partially modified the employment rules.

This article summarises the key information for employers brought about by the introduction of the new rules.

Healthy and safe workplaces

Employers must maintain a healthy and safe workplace. This includes:

• taking preliminary protective measures in the workplace;
• taking preventive measures to safeguard employees' health and stop the spread of COVID-19;
• informing employees about the protective measures in place; and
• gathering information from employees in order to make the appropriate decisions.

Preliminary protective measures
In order to take preliminary protective measures in the workplace, employers should:

• conduct risk assessments of the workplace (if necessary, this should be completed with the help of an occupational physician, an employment safety expert or an employee representative);
• create a plan of action (at management level) in case other precautionary measures have to be ordered or an employee carrying the virus enters the workplace; and
• procure the necessary protective equipment and prepare themselves and employees to use it.

Preventive measures
In response to COVID-19, employers should take the following preventive measures:

• postpone business trips and corporate events;
• conduct risk assessments relating to destination countries in case of secondment and maintain and update a list of endangered territories;
• list the positions and tasks which may be carried out from home or via remote work;
• create an action plan regarding tasks that cannot be carried out from home (eg, creating orders of duty and work plans); and
• set up a crisis staff group (a quasi 'operative action group') which may make decisions and introduce measures with immediate effect. Besides the company's management, it is worth involving or communicating with an occupational physician, a communication expert and an legal expert in this regard.

Informing employees
For the purpose of organising a healthy and safe workplace, employers should inform employees about:

• the possible symptoms of COVID-19, the incubation period and the ways in which it spreads;
• precautionary measures that they can take to avoid infection (eg, regular hand washing and the use of antiseptics);
• the availability and use of protective equipment and chemicals provided by the employer; and
• the steps that they must take if they have or develop symptoms (eg, reporting it to their employer, direct supervisor and occupational physician).

Privacy aspects of information requests

The National Authority for Data Protection and Freedom of Information has addressed the implications of COVID-19 on employers' handling of personal data.

Employers may process employees' personal data as follows:

• Employers cannot use diagnostic devices (eg. a thermometer) in order to screen for COVID-19.
• Employers may order that employees notify the person designated by the employer or the occupational physician or other doctors if it is assumed that they have been exposed to COVID-19 (eg, they have met with someone who may have had COVID-19).
• In connection with an employee's notification regarding their assumed exposure to COVID-19, employers may record:
  • the employee's identification data;
  • the content of the employee's notification (even if the employee stayed in an affected area for a private purpose); and
  • the measures that the employer has ordered.
• Instead of obtaining an employee's notification, employers may distribute a questionnaire if they have carried out a preliminary risk assessment and concluded that the questionnaire does not unnecessarily restrict employees' right to privacy. The questionnaire cannot contain any question concerning employees' medical history and the employer cannot require employees to enclose health documentation.

Employees' obligations

If an employee is asymptomatic, they must be present at their workplace. The fear of infection does not serve as a legal basis for them to refuse their duty to perform work and the availability obligation.

Employees also have a duty to cooperate and provide information to their employer regarding circumstances which may be relevant for their health and safety and work performance.

Employers' payment obligations

If an employee is healthy (asymptomatic) but must be exempt from work for safety reasons according to company procedure, they may be entitled to their base salary (stoppage time).

If the competent authority orders home quarantine in respect of an employee and they perform work from home, they are entitled to their salary. If there is a lack of work, they may be entitled to a sickness benefit.

If an employer orders an employee to work from home and the employee performs work from home, the employee is entitled to their salary. If an employee cannot work from home (eg, if they have a factory job), they are entitled to their base salary (stoppage time).

If an employee is unable to work due to the closure of schools or childcare facilities, but the employee performs work from home, they are entitled to their salary. If an employee is unable to work from home, they may agree with their employer to take their annual leave or unpaid leave. Otherwise, such absence is regarded as an absence due to personal or family reasons, which deserves special consideration, or unavoidable external reasons and no compensation is payable by the employer.

If a workplace is closed or tasks are stopped due to a reduction of capacity, the situation must be examined to determine whether employees are entitled to compensation (base salary for the stoppage time) or – if the stoppage or closure is due to unavoidable external circumstances (ie, force majeure) – whether employees are not entitled to compensation.

Home office and remote working

Under the new rules, employers may order home office or remote work without employees' consent.

Employers bear the duty and liability to ensure that the technical conditions for the purpose of work are satisfactory and that the working conditions are healthy and safe. In practice, the latter may cause problems as, in principle, employers must inspect the place of work and this may be impossible under the circumstances.

Employers are still responsible for determining employees' work schedule and working hours, but individual agreements may be concluded (eg, a partial or flexible work schedule).

Comment

Notably, the new rules allow agreements between employers and employees to derogate extensively from the provisions of the Labour Code. In view of this unusual situation, it is likely that the authorities and the courts will be more permissive in assessing the content of these agreements.

The above article is based on laws enacted and promulgated until 31 March 2020.

For further information on this topic please contact Dániel Gera or Dorottya Gindl at Schoenherr Hungary by telephone (+36 1 8700 700) or email (d.gera@schoenherr.eu or d.gindl@schoenherr.eu). The Schoenherr website can be accessed at www.schoenherr.eu.