Refusal to return to workplace amid fear of infection
Can employees refuse to return to employers’ workplace during newly introduced emergency situations in cities across Serbia?
More than two months have passed since the Serbian parliament lifted the state of emergency that was declared on March 15, 2020 over the coronavirus epidemic.
Unfortunately, the epidemiological situation in Serbia has worsened again in the meantime, which was followed by the declaration of emergency situation in 24 Serbian cities and municipalities, namely, Belgrade, Novi Pazar, Tutin, Kragujevac, Vranje, Ivanjica, Sabac, Cacak, Kraljevo, Arilje, Pozega, Uzice, Bogatic, Vladinicin Han, Lucani, Priboj, Aleksandrovac, Krusevac, Nova Varos, Brus, Cajetina, Prijepolje, Valjevo and Vladimirci (as of July 9, 2020).
In Belgrade, where the situation is the most difficult and aggravating, the following measures have been introduced (as of July 9, 2020):
- complete ban on public gatherings of more than 10 people, indoors and outdoors;
- limitation of working hours of all indoor facilities (catering facilities, retail facilities, shopping centres, etc.), which enters into force on July 10, 2020 and provides for these facilities to be closed from 9 p.m. to 6 a.m. In addition, each indoor facility is obliged to have a clear indication of how many people are allowed to stay in that closed space, and that is four square meters per person;
- limitation of working hours of all open spaces and gardens, which envisages that these facilities will be closed from 11 p.m. to 6 a.m;
- mandatory wearing of protective masks, while respecting the physical distance of 1.5 meters, in all closed spaces and in the public city transport, suburban transport and intercity transport. Until recently, wearing protective masks in closed spaces was only a recommendation, while as of July 6, 2020, non-compliance with this measure is sanctioned with a fine in the amount of 5,000.00 dinars.
The epidemiological situation is being examined on a daily basis and, depending on the current situation, these measures shall be either removed, or the need for the introduction of additional and / or new, stricter measures will be considered.
In addition, other local self-government units in which an emergency situation has been declared are also obliged to take measures in order to prevent the spread of the infectious disease COVID-19 caused by the SARS-CoV-2 virus, whilst cities and municipalities where the epidemiological situation is stable do not have this obligation.
How does the present situation, which implies the introduction of emergency situation in certain cities, without declaring the state of emergency on the territory of the entire country, reflect on the organization of work with the employer?
As a reminder, during the state of emergency, the Regulation on Organizing the Work of the Employer during State of Emergency (“Official Gazette of the RS” No. 31/2020) was in force in the entire country.
This Regulation defined the duty of employers to enable employees to perform work outside the employer’s premises (working remotely or working from home), at all workplaces where this type of work organization is possible.
If the employer, due to the nature of his business activity, is unable to organize remote work or work from home, it is necessary to adjust his business to the state of emergency as follows: to arrange shift work, so that as few employees as possible work simultaneously in one room, if this could be organized without requiring additional resources; to enable all business meetings to be held electronically or by other appropriate means (video link, video call, etc.); to postpone official travels in the country and abroad, in accordance with the decision of the competent authority on the ban, i.e. temporary restriction of entry and movement; to provide all hygiene measures to ensure the protection and health of employees and a sufficient amount of protective equipment (primarily protective masks, gloves and hygiene products) for employees in direct contact with clients or sharing a multi-person workspace.
But, with the abolition of the state of emergency on the territory of RS, this Regulation ceased to be valid.
However, the employers in a number of Serbian cities quoted above are again facing the same challenge – how to organize work process in a worsening epidemiological situation?
Despite the fact that the validity of the Regulation, which prescribed the duty of the employer to organize work outside its premises, if the work process allows that type of organization, ceased with the abolition of the state of emergency, many employers reintroduced work from home or remote work due to the introduction of the emergency situation in some cities.
Nevertheless, in the conditions of an emergency situation, this type of work organization is certainly recommended, in order to prevent the spread of the infection, but it is not an employer’s duty to organize work in this manner.
Therefore, any employer in Serbia may now freely decide whether to introduce work from home again or not.
Nonetheless, the employer is always obliged to provide the employee with proper working conditions that satisfy safe and healthy standards and requirements, and to organize work in a manner that it does not harm the employee’s life and health, as well as to provide the employee with information on rights and duties arising from health and safety at work regulations.
At the same time, the Law on Health and Safety at Work (“Official Gazette of RS”, No. 101/2005, 91/2015 and 113/2017), prescribes the employer’s duty to provide preventive measures when organizing work, in order to protect the life and health of all employees, which, therefore, also includes employees who perform work outside the employer’s premises. Preventive measures include all measures that are taken or planned to be taken by the employer, at all levels of work, in order to prevent injuries or damage to the health of employees.
Therefore, the employer is obliged to provide all employees with workplace and work environment in which safety and health measures have been implemented, regardless of whether the employee’s work takes place at the employer’s premises or remote work is organized, and regardless of whether work is performed in regular or extraordinary circumstances, such as state of emergency or emergency situation.
Also, the employer has the obligation to organize work process in a manner that work does not even endanger the employers’ safety and health at work, and the obligation to take care of the employees’ protection of life and health at work, taking into account regular preventive measures, as well as protective measures provided by applicable laws and bylaws of the competent state bodies, adopted in order to prevent the spread of infectious disease COVID – 19.
Can employees refuse to come back to the office?
On the other hand, some employers face dilemma how to approach the knotty issue of asking staff to come back to a workplace.
And, in such context, can employees refuse to return to the standard regime of work that takes place at the employer’s premises, due to the fear from the virus, and continue to work from home on their own initiative?
The answer would seem to be twofold, and it would ultimately depend on whether a particular refusal is legit or not.
Generally speaking, any employee who feels that his employment rights have been violated in any respect may resort to due protection from the Labour Inspectorate, regardless of the circumstances in which, in the opinion of the employee, his right has been violated.
In this particular instance, if a suspecting employee deems the employer’s premises or practices do not conform with preventive and protective measures for the health and safety of workers while engaged in their work during the pandemic (concretely, disinfection of premises, protective masks and gloves, safe distance, etc.), such an employee is authorized to demand from the competent Labour inspection (i.e. the Directorate for Safety and Health at Work) to perform supervision and inspection of such employer.
And, if the authority determines that the employer has not provided all prescribed measures for health and safety at work, the employer exposed to fines and measures due to misdemeanour liability.
In such situations, the refusal of the employee to return to work at the employer’s premises would be regarded as legitimate, and cannot be considered as a justified reason for termination of her/his employment agreement.
But, even though an employee’s fear of infection resulting from unsafe working conditions at the employer’s premises determined by the competent authorities is of an objective nature in this case, such an employ shall, nevertheless, be obliged to fully and properly perform his work tasks from home.
However, if the employer has taken all prescribed measures to protect its employees at work, and provided all protective equipment, but did not issue a decision on performance of work outside his premises during the emergency situation, then employees are obliged to respond to the employer’s behest and return to work at the employer’s premises.
In this case, given that the employer provided safe and healthy working conditions, the employee’s fear of the virus would not be considered a justifiable reason for the employee’s refusal to return to the standard work mode that takes place at the employer’s premises.
In this regard, unjustified absence from work would constitute grounds/reason for termination of the employment agreement, since any absence of the employee must be justified, either by her/his employer’s decision (in case of paid or unpaid leave, use of annual leave, or temporary leave with compensation earnings), or a leave introduced on a basis of a doctor’s report, due to the employee’s temporary work incapacity.
For this reason, the employee, in agreement with the employer, in each specific case must arrange and cover his absence with some of the enumerated Labour Law institutes which are at his disposal. Otherwise, the employer may terminate the employee’s employment agreement due to his unjustified absence from work, since this type of employee’s behaviour is considered as an example of non-compliance with work discipline, in terms of the provision of Article 179, paragraph 3 of the Serbian Labour Law.
If the employer considers that mitigating circumstances appear in a particular case, or that non-compliance with work discipline is not of such nature that the employee’s employment should be terminated (especially considering the fact that everyone reacts differently to new circumstances, and that it is unfair to a priori characterize the employee’s fear as irrational, because all the prescribed measures have been implemented, and, objectively speaking, there is no reason to fear), termination of the employment agreement may come across as too severe and radical in this type of circumstances. That said, the employer may still impose some other disciplinary measure for violation of work obligations or non-compliance with work discipline, prescribed by the provision of Article 179a of the Labour Law. These measures include the employee’s temporary dismissal without pay, for a period of one to 15 working days; a fine in the amount of up to 20% of the employee’s basic salary for the month in which the fine was imposed, for a period of up to three months, which is executed by suspension of salary, based on the employer’s decision on the imposed measure; a warning with a notice of dismissal, stating that the employer will terminate the employee’s employment agreement without the re-warning, if the employee commits the same violation of work obligations or non-compliance with work discipline within the next six months.
Therefore, the employer’s duty is to provide all employees with the workplace and the work environment in which all health and safety measures have been implemented, both preventive measures taken in regular circumstances and protective measures provided by applicable laws and regulations of competent state bodies, adopted in order to prevent the spread of infectious diseases COVID – 19, as well as to organize the work process in a manner that it does not endanger the employees’ health and safety at work, and to take care of protection of the employees’ life and health.
If the employer has taken all the above measures, the employee is obliged to carry out the employer’s orders, and to return to the standard regime of work in the employer’s premises, provided that the employer has not reintroduced the regime of work outside its premises.
Another option for employee is, in agreement with the employer, to apply an adequate legal institute which justifies his leave, or reorganization of work outside the employer’s premises, if the work process allows it.
In any case, the employee’s fear that is not objective and justified cannot be considered a sufficient reason for her/his refusal to return to the regular workplace, since such employee may be exposed to the risk of disciplinary measure, including the termination of the employment agreement.