Not in every case during the quarantine due to coronavirus it is possible to work in a remote working mode; and therefore, in some complicated cases the employers are entitles to declare a downtime or a semi-downtime. The employer is entitled to declaring a downtime for an employee or a group of employees, if:
- The employer cannot provide the employee with the work agreed on in the labour contract not due to the employee’s fault, or the employee refuses to start working on any other task offered to them;
- The circumstances stated in item 2 part 1 article 47 of the Labour Code have occurred, i.e. if due to the declared emergency and quarantine situation, the employer has no opportunity to offer their employees the job they have agreed on in the labour contract provided for that they have tried any other methods, i.e. remote working or after offering them any other tasks available, then the employer is entitled to announcing a downtime.
If the downtime is set based on the reasons above, it is significant to note the key importance is not only whether an employee is able to work under a remote working mode, but rather if the employer is capable to offer working tasks for the employees at all. However, if the work function can be performed under a remote working mode, but due to the situation occurred, i.e. emergency and quarantine, the employer has no possibilities to offer their employees a job (e.g., no trip sales, which can be sold by employing a remote working mode though), the downtime can be announced base on the reasons above. Thus, it is highly important that the inability to ensure the employment is justified by the circumstances based on the quarantine and emergency situation, e.g. an obvious reduction of service provision rates, etc.
When the company declares a downtime due to the emergency situation and quarantine:
- The employee cannot be required to attend the work;
- During the downtime, the employer must pay to the employee a monthly salary amounting to not less than a minimal monthly wage, provided for that the employees working hours total to 40 h a week. If the employee has a half-time job, the wages should be proportionate, i.e. if the labour contract embeds the-20-hour working week, the wage shall not be less than half of the minimal monthly wage. The employer is entitled to paying more than MMW, e.g., fix an average wage of 60 percent, etc. The latter shall be included in the order regarding the announcement of the downtime;
- A certain share of expenditure for the wages suffered by the employers due to the downtime will be compensated in the form of subsidies from the funds of the Employment Services;
- The downtime shall be formally filed in a form of an internal legal deed, e.g. the order of the head. The order must contain the information regarding the duration of the downtime, i.e. the commencement and cessation, the affected employee or group of employees (with indication of full names and positions of affected employees), the amount of wages to be paid within the downtime. The order should also contain the deadline the employees are to be informed on the cessation of the downtime;
- It is mandatory to make the employees familiar with the order;
- The employer declaring the downtime shall inform the State Labour Inspectorate within 1 day in the procedure set forth by the Institution.
The downtime for the head of a legal entity. The Labour Code does not make any specific distinction among the employees who are not entitled to the downtime. As the head of any legal entity is entered into the labour contract, they might become the subject to the downtime as well. However, a specific attention must be drawn to certain factual legal and organisational circumstances within the company’s activities. It is highly important that prior to the announcement of the downtime for the head of a legal entity, there must be the assessment of the entity’s, company’s or organisation’s functionality in terms of their internal relations (e.g., examination of their employee applications), or external relations (e.g., production and signing of agreements). In case if there is no a responsible person able to ensure the functioning of the entity, company or organisations during the downtime, the head might be eligible to a partial downtime, or no downtime at all. During the downtime, the employees and the head cannot perform their functions, and therefore, the activities of a legal entity under the circumstances are hardly imaginable, so it cannot be carried out when the downtime is declared. However, there might be cases when a head of juridicial person might take some actions in order to maintain the essential functioning of the company, e.g. signing orders, providing necessary information to other legal entities, institutions etc. Such single actions shall not be evaluated as job performance if employee does not fulfill other duties under the employment contract. The SLI performs and will perform any inspections to detect whether the employers are not making any benefit of the situation and if they are not declaring fake downtimes.
Sick leave, holidays during the downtime. If the employee is given a sick leave (e.g., child’s nursing) or the employee is enjoying his annual holiday leave, the employer is not eligible to declaring the downtime for this employee. Upon the cessation of the sick leave or annual holiday term, and if the employer has no possibility to offer the job, the employer is entitled to declaring the downtime.
Downtime and employment in another company. During the downtime in one company, the employee can get employed with the other company. The legal acts do not provide for the prohibition to be employed in several companies; however, it is important to comply with the requirements of minimum rest time and maximum work time.
Partial downtime. If the employer is not able to provide the employee with the job agreed on in the labour contract due to objective reasons, but the employee is considered valuable, the employer can offer less working hours, i.e. to declare a downtime or half-downtime to an employee or group of employees for a certain period when the working hours or working days are reduced. Partial downtime is declared by reducing the employee's working time rate per week for a certain period (at least forty percent of the working time rate, and if the number of working hours per day is reduced, the working day cannot be shorter than three hours), by determining in writing which days the employee will work, the beginning and end of the working days and days or periods of partial downtime. In such case, the wage is paid for the working hours and certain remuneration is paid for the downtime.
Downtime and aggregate accounting. The downtime for the employees working on the basis of aggregate accounting of working hours is calculated following the work (shift) schedule, which shows how many days and hours that employee’s had to work during that specific month. For example, if a partial downtime is set (by reducing the number of days per week or hours per working day), an actual time of partial downtime can be followed in the schedule based on working hours and data in the timesheets, e.g., based on the schedule, the employee has to work 4 days 11 hours each per week; during the downtime, upon reducing the working week by 2 days, the employee has to work 2 days only that week, and the remaining 2 days 11 hours each have to be recorded as the downtime in the timesheet and paid accordingly. The similar rule should be applied if partial downtime is set by reducing the working hours per day; e.g., based on the employee’s working (shift) schedule, the duration of the employee’s work time after setting the downtime can be tracked (e.g., 11 hours 4 days per week), and upon reducing the number of working hours per week by let’s say three hours, the employee should work 4 days 9 hours each and receive the salary for these hours, and the remaining hours set in the schedule should be reimbursed as the downtime.
A calculated rate of an employee’s working time within the reference period cannot be reduced due to the downtime or partial downtime (the downtime periods should not be set off from the working hours of the reference period, and the rate of the reference period cannot be recalculated). Thus, the rate of the working time of the employee within the reference period shall be calculated based on the employee’s working time rate and number of calendar weeks and compared with the time the employee has actually been working within the reference period (with inclusion of the downtime or partial downtime periods). At the end of the reference period (by summing up all months of the reference period), it can be tracked whether there have been any idle hours or overtime.