Should I have a contingency plan in the company? What measures should the plan provide for? May the company isolate its employees, and/or conduct health check-ups or questionnaires on their private lives?

In the current context, as determined in recent Executive Decree approved by the Minister of Public Administration, Labour and Social Security, companies subject to the General Labour Law must prepare and apply a Contingency Plan on the COVID-19 pandemic.

Although the law does not expressly state, to respond to the goal which led to the obligation to draw up that plan, it must contain:

  • a list of the work places which are temporarily closed and those that will operate;
  • the composition of the teams attending work;
  • the scheme under which the members of that teams should provide work (either in the work place or at home);
  • rules of organization of work and interaction between employees at the company’s premises and at home;
  • hygiene and safety rules within the company’s premises specially designed to prevent the spread of COVID-19; and
  • the procedures to be adopted in the event of any employee presenting symptoms of COVID-19 infection.

Only the competent health authorities may prescribe that screening tests for COVID-19 be carried out on employees suspected of being exposed to the infection, or who are under active surveillance.

 

Do I have to take special measures regarding pregnant employees, employees with reduced working capacity, breathing difficulties or under-aged employees?

During the period of the Calamity, the following employees will be exempt from on site work, as long as they are covered by a cordon sanitaire:

  • Employees aged 60 or over;
  • Employees with a chronic disease considered to be at risk, in accordance with the guidelines of the health authorities;
  • Pregnant employees and/or;
  • Employees with children under 12 years of age at their care, considering that this benefit is only taken up by one of the parents, regardless of the number of minors in their care.

In areas not subject to cordon sanitaire, the above-mentioned employees should, whenever possible, be part of the workforce temporarily exempted from work until the entire workforce returns to work on premises.

To the extent that there are employees in one of the situations described above, specific measures should be considered to ensure an increased level of protection covering those specific cases. Such measures should, whenever possible, be assessed together with the occupational safety and health services, as well as articulated with the recommendations of health authorities.

 

May I require an employee to work from home or do I need his/her consent?

The provision of telework is compulsory for employees who are exempted from providing work on site and telework is compatible with their functions. In these cases, the employee's consent is waived.

As for other employees, in so far, the provision of work under these conditions is compatible, the adoption of the telework regime is recommended, but the agreement of the employee is required.

When it is not possible to fully implement the telework, daily or weekly staff rotation scales should be established, with different entry and exit times.

 

Do I have any special duty of information towards my employees?

The Contingency Plan must be known to all employees and, therefore, its communication will necessarily have to cope with this concern. In addition, mechanisms should be introduced to facilitate contact between the company and employees, with respect for private intimacy, but also ensuring centralized monitoring and handling of issues.

 

Being prophylactic isolation of employees necessary or recommended, should I wait for a decision by the health authority or can I determine it in a preventive manner? Will employees in isolation be able to continue working from home?

If there is reason to suspect contagion by COVID-19, the isolation of the employee should, as far as possible, result from a decision by the health authority. If it is not possible to timely obtain this decision, the isolation - and consequent abandonment of the company's facilities - must be determined by the employer, together with the occupational health and safety services, with the employee being required to comply with this order.

As previously mentioned, employees infected with COVID-19, as well as employees to whom a health authority has determined a situation of active surveillance / prophylactic isolation (quarantine), are subject to mandatory quarantine and, to the extent that the symptoms do not prevent the performance of the professional activity, remote working mechanisms may be implemented, and it is up to the company to create the necessary conditions for this purpose.

 

What is the impact of this isolation on the employment contract? Do employees maintain the right to their remuneration?

If isolation is not an obstacle to the performance of professional activity, the employee shall, in principle, maintain the right to remuneration. If isolation prevents the provision of work, the employee is only entitled to the basic monthly salary. However, we would recommend that a case-by-case analysis is always undertake.

In addition, several measures were approved to ease the economic impact caused by COVID-19 on families, including the obligation for private sector companies to transfer to their employees' salaries the value of the social security contribution owed by employees (3% of the salary) in April, May and June 2020, in order to improve family income.

 

In the case of employees with scheduled vacation, what to do? Can I change the vacation map? Can I close the company, so employees may enjoy their vacation?

The limitations imposed during the State of Emergency in relation to scheduling/change of vacations have been withdrawn.

In any case, during the Calamity Situation changes to previously scheduled vacation should, preferably, be made with the agreement of the employees. If an agreement is not reached, the possibilities for the company to reschedule the holidays are strongly limited, both in terms of the marking period or the enjoyment of the holiday. However, in exceptional situations, employees may be required to enjoy vacations during the period of partial or total suspension of the activity of the work center, provided economic imperatives related to the company so justify it. Thus, in so far as the partial or total suspension of the activity of the work center seriously affects the financial situation of the company, the employer may, in principle, impose to employees the enjoyment during the period of suspension of the activity, upon notification to the relevant employees.

 

Can the employee in isolation continue to work remotely? If so, what should employer guarantee?

Assuming that isolation is not caused by a situation of incapacity, the employee can continue to work remotely, and the company must ensure that the necessary conditions occur in the specific case. Desirably, the remote work must have the agreement of the employee and any refusals should be managed by the company in a case-by-case basis to safeguard both the continuity of the production process and the legal guarantees enjoyed by the employee.

 

What are the consequences of the closure of schools on the rights of employees who stay at home to provide support to their families?

Employees with children under 12 years of age are exempted from work on site, considering that this alternative only benefit one parent regardless of the minors in their care.

Employees’ absence from the regular place of work or the abstention from the provision of work at home to provide support to their children will only be considered justified if the employee so requests and the employer authorizes such absence or abstention. Moreover, such absence shall be paid only if the employer does not expressly state otherwise in the respective authorization.

 

What are the solutions to mitigate or offset the financial costs and losses generated in my organization by COVID-19?

Measures to alleviate the economic impact of COVID-19 on companies have recently been approved:

  • the deferral deferral of the payment of social security contributions (8% of payroll) for the 2nd quarter of 2020, in 6 monthly instalments, from July to December, without payment of interest; and
  •  the opening of subsidized credit lines to micro, small and medium-sized enterprises in the productive sector.

In addition, existing labour legislation already provides for a set of mechanisms that could in some way mitigate companies’ costs, such as the adoption of working hours schemes to reduce working time and remuneration, as well as modelling working times in the period of crisis and post-crisis, thereby reducing financial costs with staff.

 

Must workers travel with some sort of credential when they head to office?

Yes; all employees of companies whose activities are not suspended must be accompanied by a credential issued by reference to the form approved by Presidential Decree no. 98/20, of 9 April, when heading to work. Workers may be asked to show the named to credential to the authorities when commuting from home to work.

 

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This information is being updated on a regular basis.

The information provided and the opinions expressed herein have been prepared with the help of VdA Legal Partners and are of a general nature. They are not in lieu of appropriate legal advice in connection with specific cases.