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Life under Quarantine

What COVID-19 means for employers and employees

Humanity is facing the greatest challenge of the 21st century: this coronavirus differs from the hitherto known influenza that we learned to live with. It is an epidemic that already takes its toll on our daily lives and has significant impact on our work.

The Hungarian Government has also slammed on the brakes and introduced some measures to assist Employers to uphold their operation and protect their employees’ health conditions. The Government Decree No. 47/2020 released last week enabled Employers to take necessary and adequate steps to monitor the health status of their Employees. It looks like a minor change, but, in fact, two months ago, it would have been impossible for an Employer to just think about obliging Employees to seek immediate medical attention.

Being the legal translation of what they call ‘social distancing’, the most significant modification relates to the Employers’ rights to instruct home office and remote work. The Hungarian Labor Code has gone through a number of amendments in the past years, but the rules on the workplace to carry out work has remained largely unchanged. In line with other European countries, Employers in Hungary have also been entitled to instruct Employees to work from home, but only for up to 44 working days, or 352 working hours per year. An agreement between Employee and Employer would have been required to surpass these thresholds. Pregnant women and families with a small child, single parents until their child reaches sixteen years of age, Employees providing long-term care for a close relative in person and Employees with serious health impairment could not have been instructed at all to work at a different workplace, not even at home, without their consent. It means practically that in case of traditional, good old employment contracts with a fixed place of work, the Employers should have individually agreement with each and every Employee to enable longer-term remote working.

From now on, any Employer is free to order tele-work for an indefinite period of time, for any Employee (even if they would fall into an of the above mentioned preferential categories) without any limitation, or Employee consent. A further modification relates to the Employees' working schedule. Up until last week, an Employer should have announced any change at least 96 hours (i.e. 4 days) in advance. The rule was meant to protect the interests of Employees so that they were not exposed to unexpected, immediate changes in their daily work routine. Now, that regulation has been lifted, too, without any restriction. Finally, the new law allows Employers and Employees to deviate from the provisions of the Labor Code. The novelty of this provision is that it legalizes also those agreements that are more detrimental for the Employees than what the Labor Code would otherwise allow. Still better than losing jobs.

The new labor rules help indeed to slow down the economic clock, but both Employees and Employers should realize that certain employment hurdles exist. There are Employees, for whom home office cannot or has not been ordered, while no school or care location is available for their children. They cannot appear for work even if they are free of symptoms of illness. For them, the new Government Decree is of little help. Theoretically, they could go on their annual paid vacation, but as per the old rules, they can only use seven days at times of their own choice, but only if they first notify their Employer 15 days in advance. Save for strict statutory exceptions (e.g. Employees with a child under the age of three years), Employees are not entitled to unilaterally take unpaid vacation, either - only if their Employer agrees to it.

Obligations by the Employer
Quarantine has long been a rather historic term that we are now learning to live with. We should keep in mind however, that 'voluntary quarantine' is not a legal category and unless the Employer orders remote work, the Employees’ voluntary quarantine can only be performed in the form of paid or unpaid vacation, generally with the consent of the Employer. By contrast, if the Employer obliges the employee to go into 'voluntary quarantine', as a newly enabled health-check measure, such an order can be regarded as a release from work along with payment of salary or as ordering of home-based work. Should a quarantine (in Hungarian: járványügyi zárlat) be officially ordered by the government or an administrative body, it can only be considered as a legitimate ground for a paid sick leave, if the Employer cannot offer any other working options for the Employee. However, if the Employee is 'separated', from a medical point of view, in a mandatory pandemic quarantine (in Hungarian: elkülönítés), he/she qualifies as incapable of work and will be entitled to paid sick leave.

It is very likely that in the upcoming days the government will order the closure of facilities or a curfew, whereby Employees with no home office option cannot access their place of work. The trending interpretation of law for such a case is that Employees may seek paid sick leave. Nevertheless, a different (conservative) approach is also to be mentioned that such an event may qualify as a force majeure event that automatically relieves Employers from their labor law related obligations (including salary payment) without triggering the stipulation on the Act on Social Securities on the Employees’ right to paid sick leave.

Needless to say that further changes in the legal environment are on their way to fight the economic impacts of the COVID-19 pandemic.

Dr. Andrea Jádi Németh, Managing Partner, Jádi Németh Attorneys at Law

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