Our government has adopted a resolution declaring a quarantine regime and imposing imperative and recommendable restrictions and bans for individuals and entities. How will this affect employment relations and what are the possibilities available to employers and employees?
In response to the quarantine declaration, we have prepared a set of key recommendations and tips.
Telecommuting is recommended where objectively possible; this option is actually in the best interests of both parties. As a rule, telecommuting is arranged by mutual agreement of the parties as well as by other methods (such as suggestion, agreement, and so on). Before commencing to telecommute, we recommend establishing the terms and conditions for this type of work as prescribed under Article 52 of the Labour Code.
Downtime applies when, for objective reasons (such as a drop in the amount of orders, suspension of business, and so on), the employer is unable to provide the employee with the level of work stipulated in the employment contract and the employee does not accept other work as may be offered to them. Downtime can be declared for a time-definite and –indefinite period. Furthermore, downtime can be either full or partial. Compensation in the event of downtime is paid in the manner outlined in Article 47 of the Labour Code, with the average amount of compensation paid for the first day, 2/3 of the average compensation amount paid for the second and the third day, and 40 per cent of the average compensation amount paid from the fourth day on. The employee’s compensation in the calendar month when downtime is declared may not be below the minimum monthly salary. Downtime maintains a balance between the interests of the parties to the employment contract. However, one has to keep in mind that if downtime extends for more than 30 consecutive days or more than 45 days over the last 12 months, the employee would become entitled to terminate the employment contract at their own initiative on significant grounds within the meaning of Article 56 of the Labour Code. Notably, the plan for the economy as announced by the government provides for up to 3 months of governmental funding to support employers’ efforts in maintaining jobs by covering part of the partial or full downtime compensation for the employees: according to this plan, the portion of government money would amount to 60 per cent of the downtime compensation, up to a maximum of one minimum monthly salary.
Employee reassignment. The parties may agree that, if possible, the employee will be temporarily reassigned to another job and/or another workplace different from the one stipulated in the employment contract. Consequently, this type of agreement could help prevent downtime. The parties would have to agree on the terms and conditions of the reassignment.
Adjusting working hours. The parties may agree to change (reduce) the amount of hours if possible; doing so could put the parties in a position to avoid other potential negative consequences. This would require modifications to be made to the employment contract by mutual agreement of the parties.
Alteration of other terms and conditions of the employment contract or work can also be made; however, one has to evaluate the specific terms and conditions that might have relevance in this situation. The employee’s objection to working on the modified terms and conditions of the employment contract could be considered grounds for termination of employment at the employer’s initiative through no fault of the employee (see Art. 45, 57 of the Labour Code). Employers may modify terms and conditions other than those of the employment contract without the employee’s consent, but by giving a reasonable notice to the employee. The present context calls for a review of the local legislation on health and safety, assessment of the work regulations and the procedures for telecommuting and using work equipment, and change of the compensation systems in particular.
Changing work time (schedule) may be relevant where employees work under a regime of keeping account of total worktime and have a longer accounting period (such as 3 months). In uncommon situation, the employer would in theory be able to change the work schedules and organise the work so that employees would have days off at certain times when the amount of orders is low and would have to put in more hours in the following month, always in keeping with the legal requirements for the maximum amount of workhours and minimum amount of days off (Article 114, 115, 122, etc. of the Labour Code). Changes in the work schedules should follow the procedure prescribed under LC Art. 115, and the amount of work hours missing or exceeded during the period of keeping account of total worktime should be compensated in the manner prescribed under the Labour Code. Also, there is a hypothetical possibility for the parties to change the work time regime as such (for instance, by agreeing on tailored working hours) to the extent relevant in a particular situation.
Granting vacation time is counter-beneficial for the employee to some extent, yet this possibility remains available especially if the employee does not want to lose a portion of their compensation due to downtime, as a case in point. The parties may agree that the employee will be granted unpaid or paid vacation time. In its own turn, the employer may encourage the employee to use their vacation time, for instance, by offering extra time of paid leave in addition to what the employee has already accumulated if the employee agrees to use the vacation time available. However, it is impossible to grant employees vacation time without their consent.
Part-time work. The employee’s total work time may be reduced by up to one-half for important economic reasons recognised as such by the government. In that case, the cut in pay is compensated with part-time work social security compensation. The imposition of a part-time work regime is subject to special requirements and procedure set forth in the legislation. The government has so far not adopted any resolution to enable the imposition of part-time work regime.
Termination of employment. As the economic and financial situation deteriorates on account of the coronavirus and it becomes necessary to change the way work is organised and so on, any such changes or other reasons pertaining to the employer’s business may be considered legitimate grounds for the termination of the employment contracts with certain employees if the situation makes the functions of the particular employee or a group of employees redundant within the meaning of Article 57.1.1 of the Labour Code of the Republic of Lithuania.
Temporary sick leave. The employee could contact their healthcare establishment over sick leave on grounds outlines in the legislation. For instance, under the rules for issuing electronic sick leave certificates and electronic pregnancy and birth-giving leave certificates, if a regime to restrict the spread of infection is introduced at educational establishments, and whenever necessary to look after pre-school children, electronic certificates to the mother (foster mother), the father (foster father), or the guardian will be issued by children’s physicians; said certificates are good for a designated period, which cannot be longer than 14 calendar days. Ergo, in this case employees may approach their healthcare establishments on these grounds, considering that operations of healthcare establishments are being suspended by virtue of the current epidemic situation. Sick leave certificates can also be issued for self-isolation purposes to people returning to the country from territories affected by the virus or those who have been exposed to a confirmed case of the new coronavirus. One should not forget that sick leave certificates may be (and should be) issued in the event of actual sickness.
During the quarantine period, all employees returning from abroad are required to self-isolate for the duration of 14 days. The self-isolation requirement applies to people returning from any foreign country including the Baltic and EU states. When possible, such employees should resort to telecommuting. If that is not possible, other options (such as downtime or leave) should be considered.
Lithuanian citizens are banned from leaving Lithuania with the exception of returning to the place of residence, travelling to the place of employment, as well as by permit from the head of the State Border Guard Service or a person authorised by them. Which means that no employee travels on business or other purposes will be allowed.
Employee health and safety is the responsibility of the employer. It means that the employer has the duty to create a work environment for the employees that is safe and healthy in terms of all work-related aspects. This duty does not go away if quarantine is declared either: in that case, the employer must tighten the legal, technical, and organisational measures in place to ensure that the employees are provided with the right work conditions. The specific potential measures depend on the employer’s business, the nature of the employee’s work, other objective possibilities to create an adequate work environment: for instance, office staff could telecommute, manufacturing personnel could work under a different work schedule (shift) regime to ensure appropriate social distancing, adequate personal and/or collective protection equipment should be employed, complete with disinfection and ventilation of premises, cleaning of surfaces, and so on. If a particular situation prevents the employer from ensuring a safe and healthy work environment, the employer should suspend its operations in the manner outlined in the Law on Employee Health and Safety. By the same measure, employees have a right to refuse to work if the employer fails to ensure a safe working environment or if said environment is dangerous or poses a hazard to the employees’ health or lives. On the other hand, the fact that quarantine is in place alone does not mean that all employers are unable to ensure safe and healthy work conditions. Therefore, not every refusal to work for reasons of quarantine will be considered justified or reasonable. Notably, the set of obligations in the area of employee health and safety does not concern employers alone: employees, too, should abide by the appropriate national, local, or corporate health and safety requirements, such as self-isolate upon returning from abroad or having been exposed to someone who is infected. Accordingly, the employer has the right to suspend employees if they do not demonstrate compliance with health and safety requirements.
Other rules and regulations may be introduced during the quarantine as well. On top of that, amendments to the Labour Code and other related legislation regarding downtime, telecommuting, and part-time work are on the table, and the list of options is apt to change. We recommend that business and employees find a consensus and take advantage of several available options (for instance, mix and match provisional changes in the working conditions, downtime, and telecommuting, and so on). Our list is but illustrative in nature and depends on the particular circumstances of a specific situation.
The Glimstedt Labour Law Team is ready to provide you with the assistance you may require – let us get in touch and discuss your concerns.
Aušra Maliauskaitė-Embrektė, Partner and Head of the Labour and Company Law Practice at Law Firm GLIMSTEDT
Artūras Tukleris, Senior Associate at Law Firm GLIMSTEDT and expert in labour law