Europe: Getting Back to Business in the COVID-19 Era

May 22, 2020

Businesses in Europe should prepare back-to-work plans while also listening to guidance from health and government authorities as the COVID-19 coronavirus pandemic continues.

Here's what you should know about reopening in certain areas.

Austria

Content provided by DORDA Rechtsanwälte GmbH

Contact:
Dr Andreas Zahradnik
Partner
+43-1-5334795-42
andreas.zahradnik@dorda.at

COVID-19 in Austria – Gradual Lifting of Restrictions

In early March 2020, the first COVID-19 restrictions have been
adopted in Austria. Mid-March 2020, a lockdown for the whole country was announced. All but essential businesses have been asked to switch to home office. Shops – other than groceries, pharmacies banks and certain other essential services – and restaurants were closed, public transport materially reduced, long-distance travel de facto eliminated. Mid-March, the national borders to all neighbouring countries were closed.

The first easements of the new rules were announced roughly a month
after the lockdown and further easements followed about every two weeks:

  • On 14 April small shops were allowed to open.
  • The lockdown effectively ended and also larger shops opened on 2 May, but social distancing rules and obligation to wear face masks in closed rooms etc remain in place. Most companies started to gradually shift back from home office.
  • Restaurants and bars were allowed to reopen on 15 May (again, subject to tight regulations).
  • Hotels will be allowed to re-open on 29 May.
  • Theatres, cinemas etc will be opened gradually too, whereby the rules are not definite yet. Mass events will remain to be prohibited.
  • Borders are about to be opened gradually, too.

The Austrian Government has adopted a huge COVID-19 financial recovery package to deal with the adverse economic effects for businesses and employees.

Back to Business: Key issues

Employees

  • Corona short-time work: Since March, many businesses have made use of the possibility of a temporary reduction in normal working hours (by at least 10% to a maximum of 90%, temporarily to zero) and pay as a result of economic difficulties. Short-time work is limited to a maximum of three months. The employee still receives 80 to 90% of the previous net salary (net guarantee). The employer can apply for a subsidy, which covers most of the employer's additional costs arising from the net guarantee.
  • In most businesses, employees who have been working under the short time scheme will now gradually return to full-time work. However, if required, the short-time work can be extended by a further three months.
  • Safety measures: It is required that a distance of one meter between people is strictly observed. Thus, businesses will have to analyse their current office situation. Especially open-plan offices are challenging. It may be necessary that not all employees are allowed to return to the office. Alternatively, the use of hardware safety installations (such as protective shields) is possible.
  • In retail stores, the maximum capacity is one person per 10 sqm. This rule is advised to be observed as a reference value for offices too. Businesses should establish specific rules of conduct (e.g, regarding the use of elevators and common rooms, hygiene measures such as disinfection and use of face-masks). The cleaning and ventilation frequency should be increased. Under no circumstances, employees should go to work if they feel ill. Employees who belong to a risk group do not have to return to work.

Customer interaction:

  • Quantitative restrictions on admission: If the business (e.g., a small retail shop) has a customer area, only one person per 10 sqm is permitted. Customers need to be informed accordingly (e.g, notice board in the entrance area). It will thus be required to count customers when they enter the shop. Both, employees and customers are obliged to wear a facemask (in restaurants only the employees need to wear a face mask, customers only, when they enter the restaurant). It is also advisable to provide hand sanitizers and contactless payment.
  • One-meter distance: Importantly, if the one-meter distance between employees and customers cannot be observed due to the nature of the service (e.g., hairdresser), the risk of infection needs to be minimised by other suitable protective measures. The Austrian Chamber of Commerce (WKO) provides sector specific hygiene recommendations. Every business should have a COVID-19 concept in place.

Data collection and privacy

  • Suspected case of infection: An employer is allowed to process information on COVID infections of its employees (health data) based on the GDPR. Thus, frequently no consent is required. However, the record of processing activities needs to be updated and a data protection impact assessment is required. Disclosure of information on infection shall basically be made in a pseudonymized form, only.
  • Temperature testing in entrance areas (legally not required) is not considered a privacy issue as long as data is neither automatically processed nor stored in a structured form. Thus, CCTV in entrance areas may have to be adjusted.
  • Homeworking and privacy: If employees keep working from home, associated risks must be assessed and mitigated accordingly, in particular when employees can access data from outside the company.

Financial obligations

  • Extraordinary possibility of deferring loan payments: There are specific rules for consumers and small businesses that entered into loan agreements before 15 March 2020. Small enterprises are enterprises employing less than 10 individuals and whose annual turnover or total assets does not exceed EUR 2 million. The lender's claims for repayment, interest or principal payments due between 1 April and 30 June 2020 are deferred for a period of three months from the due date, if the borrower has suffered a loss of income due to the exceptional circumstances caused by COVID-19, which make it unfeasible to pay the amounts when due. Such deferral does not qualify as default.
  • COFAG is an agency funded by the federal government to provide loan guarantees and/or financial contributions of up to EUR 15 billion. Support from COFAG is available for companies and industry sectors particularly affected by government measures such as bans, restrictions on travel or assembly and that have liquidity problems. In addition, the Corona Aid Fund supports companies that are confronted with major revenue shortfalls and whose going concern is at risk as a result of COVID-19. Support is provided by means of guarantees from COFAG to banks that grant loans to such businesses and direct financial contributions.

Useful links and resources

   

Denmark

Content provided by Gorrissen Federspiel
Contact:
Morten Nybom Bethe
Partner
 
Current national guidance or requirements regarding returning to work
 
In Denmark, all employees in the public sector who does not perform critical functions continue to work from home until June 8. From June 8, some employees in the public sector who have a surplus of work due to the situation will return to work.
 
In the private sector, the general guidance has been that everyone who can work from home should work from home. In connection with the re opening of Denmark and the plan for phase 2 as announced on May 7, the general guidance concerning returning to work in the private sector has changed and the authorities expects that a significantly higher number of employees in the private sector is returning to office. Please see below under “Logistical limits regarding social distancing and size of meetings” for a description of the requirements regarding returning to work.
 
Logistical limits regarding social distancing and size of meetings 
 
The Danish health authority has issued the following guidelines in relation to the spread of Covid-19.
  • The Danish Health Authority to keep a distance of one meter to other people. This should be complied with at work in respect of working stations, canteens etc.
  • For individuals at risk (such as elders and chronically ill) it is recommended to keep a distance of two meters and if possible, such people should continue to work from home.
  • The ban on assembly’s larger than 10 people is still in force. This must be complied with at work, meaning that no more than 10 people can join a meeting, eat lunch together etc. The government will adjust the limit to 30-50 people in the beginning of June. 
Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring 
 
There are no requirements in Denmark as to test employees. Employees are recommended to stay home if showing signs of illness. 
 
If an employer takes extraordinary measures to limit the spread of Covid-19, and such measures include processing of personal data, the General Data Protection Regulation is applicable and must be complied with; please see below under “Data collection and privacy”.

Cleaning recommendations or requirements 
 
There are no requirements as to cleaning. 
 
However, the Danish Health Authority recommends to clean often and more thoroughly than usual.

Compensation or remuneration issues
 
The employer has the overall right to lead and structure the work. This means that the employer can structure the workflow and implement measures of various kind, as long as such measures are reasonable, relevant and adequate.
 
In relation to the above, the employer can restrict an employee’s access to the workplace to limit the spread of Covid-19, for example if an employee has been in contact with a person who is confirmed to be infected.  If the employer restrict an employee’s access to the workplace the employer will, in most cases, be required to continue to pay the employee, even if the employee is not capable to conduct his/her work. If possible, the employer can require that the employee work from home.
 
Please see under “Data collection and privacy” in respect of the processing of personal data.

Data collection and privacy
 
The Danish Data Protection Agency issued a guidance pertaining to an employer’s processing of employees’ personal data pertaining to Covid 19.
 
The Danish Data Protection Agency finds that it complies with the General Data Protection Regulation to process information that is not specific enough to be considered health information, such as information pertaining to:
  • That an employee has been in a “risk zone”,
  • That an employee is in quarantine (without processing why that is), or
  • That an employee is sick.
Depending on the circumstances it is compliant to process actual health information, e.g. that an employee has been infected with Covid-19, if necessary to protect colleagues or implement the necessary measures to protect others. However, such processing must be reasonable and limited to the strictly necessary. The employer therefore must consider:
  • Whether there is a good reason to process the personal data,
  • To what extent the personal date should be specified, hereunder whether the purpose of the processing can be reached with the employee “telling less”, and
  • Whether it is necessary that names or other identifiers are necessary.  

   

Estonia

Content provided by Sorainen
 
Contact:
Reimo Hammerberg
Partner
 
The national emergency situation in Estonia finished on the night of 17th May 2020. Thereby, legislative measures were put in place to implement measures regarding the period following the emergency situation, relaxing the requirements step by step.

Return to work
 
There are no specific restrictions for returning to work, provided that the below logistical limits have been followed. However, most employers continue to allow employees to work from home, where possible.

Logistical limits
 
People are not allowed to move around in public places in groups larger than two people (except for families or if the characteristics of particular work or activity cannot enable such arrangement). Two metre distance must be kept with other people at all times when moving around indoors (except in people’s homes) and in public places (except for families or if the characteristics of particular work or activity cannot enable such arrangement). Specific restrictions apply to social events and sports.
 
In sales rooms, including service halls of service providers or catering entities as well as in public spaces of shopping centres, the abovementioned measures must be implied and it must be ensured that disinfectant is available to all clients and employees at least at the entrance and at the exit of the room.
 
Public meetings are only allowed provided that the organiser ensures that the following measures are implemented:
  • the two metre distance requirement mentioned above is fulfilled;
  • the number of participants in an indoor event until the 1st June 2020 is up to 10 people and any indoor space is occupied up to 50% of its capacity;
  • the number of participants in an indoor event until the 1st July 2020 is up to 50 people and any indoor space is occupied up to 50% of its capacity;
  • the number of participants in an indoor event from the 1st July 2020 is up to 500 people and any indoor space is occupied up to 50% of its capacity;
  • the number of participants in an outdoor event until the 1st July 2020 is up to 100 people;
  • the number of participants in an outdoor event from the 1st July 2020 is up to 1000 people.
Testing requirements
 
There are no specific national measures implemented with regards to testing requirements or recommendations including employee monitoring. Measures apply in case a person or their household member has been diagnosed with COVID-19.

Cleaning recommendations or requirements
 
There are no specific recommendations or requirements for cleaning, provided that the abovementioned disinfectant availability has been ensured.

Compensation or remuneration issues
 
The Estonian government adopted a short-term economic support package on 19 March 2020. The package includes Unemployment Insurance Fund labour market support, sickness benefits, tax benefits and allows tax arrears to be deferred for 18 months. It also includes temporary suspension of the government’s second pillar contribution to the pension fund and partial reimbursement of the direct costs of cancelled events.
 
The Unemployment Insurance Fund will support employers who have been significantly impacted by the outbreak of the COVID-19 spread by compensating the income of employees. The total amount is EUR 250 million and is subject to the following conditions:
  • the benefit is available to any qualifying employer for a period of two months requested by the employer within the period from March to May 2020;
  • the allowance will be paid up to a maximum of EUR 1,000 per worker per month; and
  • the allowance will be payable, as a general rule, at 70% of the gross salary of the employee over the previous 12 months, plus at least EUR 150 gross salary will be paid by the employer.
The Unemployment Insurance Fund and the employer pay all taxes on wages and allowances.
 
Advance social tax aid measures will be implemented for self-employed workers.

Data collection and privacy
 
There are no specific measures for data collection and privacy in relation to COVID-19.

   

Finland

Content provided by Dittmar & Indrenius
 
Contact:
Anders Carlberg
Managing Partner
 
Current national guidance or requirements regarding returning to work in finland
 
Remote working is recommended until further notice. The government will reassess the recommendation after summer. However, it is up to the employer to decide whether work can be carried out remotely. Should the organisations return to workplace, the employer should make or update their risk assessment and supplement workplace instructions and procedures, taking specifically into account exposure to the COVID-19 infectious disease. For further information, please see guidelines for workplaces to support returning to work, published by the Finnish Institute of Occupational Health.

Limits regarding social distancing and size of meetings
 
The Finnish government has instructed people to limit unnecessary social get-togethers and stay home. Persons over 70 years of age must stay in quarantine-like conditions and refrain from contact with other persons to the extent possible. People are instructed to keep at least one meter safety distance to each other when being outdoors and public places.
 
Currently, public gatherings with more than ten people are prohibited, but as of 1 June 2020, the restriction will be eased to a maximum of 50 people. The 50-person limit applies also to events organised by private sector operators, and should also be followed by companies. Further, it is prohibited to organise large public events (more than 500 people) until 31 July 2020.
 
For further information on the up-to-date restrictions, please see information on restrictions during the coronavirus epidemic published by the Finnish government.

Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
Employer may not under any circumstances do temperature tests or other examination for the personnel even with employee's consent due to the necessity requirement (please see section 5) as stipulated in the Finnish Act on the Protection of Privacy in Working Life. An employer is not allowed to monitor its employees.
 
However, the employer can request that an employee will go to a physical examination performed by a health care professional in order to ensure that the employee is fit to work. In practice, the examinations are carried out by the occupational health care service operator used by the employer. The employer is entitled to receive a high-level certificate from the examination (fit for work / not fit for work). The certificate does not include any detailed information on employee's health data.
 
Employers may include COVID-19 tests in the scope of the personnel's occupational health care services, if necessary. There is no official recommendation for employers to include COVID-19 tests in the occupational health care services but the labour market organizations have proposed that the occupational health care services should be utilised in order to increase the number of COVID-19 tests.

Cleaning recommendations or requirements
 
Employers are obliged to ensure the wellbeing and occupational safety of their employees. Employers must analyse and identify hazards and risk factors caused by work, work premises, other aspects of the working environment and working conditions. This applies also to risks related to COVID-19. For further information, please see guidelines for employers to prepare for the coronavirus epidemic.
 
Employers should ensure that all employees are aware of good hygiene practices, such as regular hand wash and/or use of hand sanitiser and keep employees informed of the workplace strategy against coronavirus. Further, all frequently touched surfaces should be cleaned thoroughly and preferably several times a day. For further information, please see cleaning guidelines for the prevention of covid-19 infections.
      
Compensation or remuneration issues 
 
Generally, normal rules regarding salary payment apply if employer has instructed an employee to either stay home or work remotely. 
 
If an employee is not able to work remotely, he or she may be entitled to a communicable disease allowance under the Communicable Diseases Act. If an employer choose to pay the employee regardless, employer may be able to apply for reimbursement from the Social Insurance Institution (Kela). To be eligible to receive the allowance or reimbursement, the employee must have officially been placed in quarantine. As testing for coronavirus in Finland is currently selective, not all employees will be tested and will therefore not be eligible to receive the allowance. Further, when on sick leave, employees have a statutory right to pay for nine days following the day when the employee fell sick. The employee must inform his or her employer of the sickness and, depending on employee's policy, provide a doctor's certificate if requested. 
 
An employee on unpaid absence due to coronavirus may now apply for a temporary support. The temporary support is paid if the loss of earnings is not covered by another law, and only if the employee has a valid employment relationship. Further, there are certain temporary amendments in the legislation on unemployment benefits. For instance, the employee in entitled to receive the allowance already from the first lay-off or unemployment.
 
The government has enacted measures to support businesses, e.g., direct financial support and relaxing the terms of tax payment arrangements. Employers' pension contributions have been temporarily reduced and upon request, the term of payment can be prolonged.
            
Data collection and privacy
 
According to the Finnish Act on the Protection of Privacy in Working Life, employer can only process employee data, which is directly necessary for the employment relationship. The necessity requirement cannot be deviated even with employee's consent. Said act also includes provisions on processing of employee health data.
 
Employer is only allowed to process health data on its employees in very limited situations. COVID-19 does not make any exception to this main rule, even if the employer at the same time has an obligation to ensure a safe working environment for its personnel.
 
The Finnish government is currently preparing the implementation of voluntary tracing apps in which the processing of data would be based on consent. As employees are not allowed to monitor their employees, any utilisation of employer's own mobile applications is not allowed. For further information, please see the frequently asked questions on data protection and the coronavirus.

Other important issues
 
Finnish authorities recommend that travelling abroad should be avoided. Therefore, employers should control unnecessary business travel. As of 14 May 2020, commuting and other necessary travel is permitted in the Schengen area. Further, employers should promote flexible working hours, offer more opportunities for shift work and use electronic communication. 

    

France

Content provided by Dechert LLP

Contact:
Philippe Thomas
Partner
+33 1 57 57 80 91
philippe.thomas@dechert.com
 
How do employers determine if they are ready to reopen (e.g., status of government shutdown orders)?
 
All businesses may reopen as long as the employer takes all necessary measures to ensure the health and safety of its employees. However, employers are invited to ask their employees to continue to work remotely whenever possible and return to work only when physical presence is required.
 
Some businesses (hotels, cafes and restaurants) must remain closed until further notice. Malls of more than 40,000 m2 are allowed to reopen, except where local authorities have prohibited such reopening. Until now the red/green designation made for each region in France had an impact only on the re-opening of the public parks and the schools.

What steps should employers take before reopening (e.g., develop a plan, deep cleaning, potential structural/operational changes)? 
 
The employer must update an internal form called single risk assessment document to identify the risks associated with COVID-19 and describe how it will protect its workforce for each work situations in which the transmission of COVID-19 might occur.

The employer must adopt safety protocols, which shall include measures such as cleaning and disinfection of premises, implementation of social distancing rules, spacing out departure and arrival hours as well as break times in order to avoid gathering of employees, providing PPE to employees, etc.
 
The employee representatives, through the Social and Economic Committee ("SEC"), and the occupational health services must be involved in the definition and implementation of risk prevention measures. 
 
Failure to implement appropriate preventive measures with sufficient involvement of employee representatives may result in court-ordered provisional measures (on request of the SEC, trade unions and/or the labour inspector). Courts have in some cases ordered a temporary shutdown of business. By way of example, Amazon and Renault had to suspend their activities due to some deficiencies, among which the lack of sufficient involvement of employee representatives, failure to take into account psychosocial risks, failure to formalize in writing safety protocols, the absence of practical training regarding the safety measures provided in such protocols, etc.

How should an employer handle the initial reopening (notice to employees, PPE availability, employee refusals to return to work, etc.)? F
 
French authorities did not impose any specific obligation regarding notification of reopening. However, once employees have returned to work, they must have access to safety protocols, which must be displayed in the premises. The employer must also provide adequate information and training to employees on the measures adopted, to ensure the rules are fully understood and effectively complied with. 
Provided the employer carried out all the recommendations issued by the French Government and provided sufficient information to its staff, employees shall have no right to refuse to return to the workplace.
 
Nevertheless, this does not apply to vulnerable employees, who shall remain on furlough provided remote working is not possible. This includes employees who are at risk of developing a severe form of COVID-19, based on a number of criteria established by the French Government (those over 65 or with specific health issues such as obesity, cardiovascular history, chronic respiratory disease, etc.).

What are the key considerations in continuing operations (dealing with employee cases, leave administration, failure to follow social distancing requirements, etc.)?
 
Monitoring of employees’ health
 
The employer is not allowed to investigate employees’ health conditions through questionnaires and surveys, as such operations being reserved to occupational health services. Employers may only appeal to the individual responsibility of each employee by inviting them to stay home in case of symptoms that are suggestive of COVID-19. 
 
While the government stated that they are not recommended, employers may conduct temperature screenings on condition that they form part of a broader set of measures and that sufficient safeguards are provided (in particular regarding prior information and absence of recording of the results). Active infection and anti-body testing are prohibited. An employer can only invite its employees to be tested and facilitate such testing outside the company premises due to the medical nature of these tests. The employer has no right of access to the results. 
 
If an employee displays symptoms of COVID-19 in the workplace, the employer must send the employer home or call emergency services (in case of severe symptoms) while ensuring compliance with safety instructions (isolating the employee in a dedicated room while still in the workplace, contacting occupational health services, ensuring that areas in which the employee may have moved are cleaned up, etc.).
 
Sick leave
 
The conditions for compensation of employees on sick leave have been simplified. They receive compensation (daily allowance paid by social security + complementary compensation from the employer) without any waiting period and regardless of their length of service. 
 
This applies to all sick leaves (even unrelated to COVID-19) during the entire health emergency period, which, for the moment, is set to end on July 10. 
 
Reacting to a breach of security protocols 
 
The employer can impose disciplinary sanction when an employee fails to comply with its security protocols. The risk prevention measures included in the security protocol indeed form part of the company’s disciplinary rules, without having to follow the usual procedure which requires prior consultation of the SEC and transmission to the labor inspection. 

   

Germany

Content provided by Dechert LLP

Contact:
Giovanni Russo
Partner
+49 89 21 21 63 16
giovanni.russo@dechert.com
 
How do employers determine if they are ready to reopen (e.g., status of government shutdown orders)?
 
Government shutdown orders are being gradually eased in Germany, meaning that certain businesses are already allowed to re-open (e.g., retail) or will be allowed to re-open soon (e.g., restaurants and museums) whilst for others businesses (clubs, fitness centers) there are no dates set yet as to when they are allowed to re-open. In each case, however, businesses remain subject to certain restrictions. In Germany, both shutdown orders and restrictions for reopening of certain businesses differ amongst Federal states. As a consequence, employers with operations located in different Federal states may face the situation that they are entitled to re-open one of their sites, but not all at the same time. Employers are also obliged to keep themselves informed whether the opening of their business is subject to the observance of any restrictions. 
 
Notwithstanding legal entitlements for re opening, employers should consider that the economic life is to be gradually revived only with a view to limiting adverse economic impacts of the crisis on the one hand, but also to avoid an increase of infections again. Therefore, any re-opening of business must be done after a carefully balancing of economic interests and the employer’s duty of care (Fürsorgepflicht) for its employees (sec. 618 German Civil Code).

What steps should employers take before reopening (e.g., develop a plan, deep cleaning, potential structural/operational changes)?
 
In advance to (gradually) re-opening their businesses, employers should properly prepare for the restart by developing a plan, which needs to consider the maintenance of employee health and safety and a prevention from infection risks for employees on-site as the top priority. Any plan for re-opening should contain as a minimum considerations of the employer in relation to technical, organizational and personnel measures required to comply with the guidelines issued by the German government in relation to the new recommended occupational safety standards. A violation of the guidelines, though not legally binding, may result in a liability of the employer for damages incurred by its employees.

Technical / constructional measures include conversion of offices / separation of working spaces (by e.g., installing plexiglass walls), distance signs in order to ensure observance of the minimum distance of 1.5m (which needs to be maintained and, if impossible for practical reasons, respiratory masks provided or, at least financed by, the employer are required), as well as deep cleaning / disinfection measures (both in advance to the re-opening and on a regular basis following the re-opening).
 
Organizational and personnel measures include working with a reduced number of staff on-site, while the remainder of the employees remain working from home, shift work, planning of capacities including decision making which functions are essentially needed (full or part time) for the re-start, implementation of a rotating system, treatment of work equipment, visitor tracing, as well as break and vacation planning. In particular, when deciding upon the implementation of organizational and personnel measures resulting in a differentiated treatment of (groups of) employees, employers should take into account equal treatment considerations and document their entrepreneurial decisions and operational needs properly. 
 
With a view to reduce infection risks, employers should further consider suitable control mechanisms to be put in place before resuming operations, such as systems providing for a documentation of presence on-site, identifying contact persons in suspected infection cases, and health checks and reporting, including mobile temperature measurement. 
 
Certain measures in relation to personnel planning may trigger statutory consultation or even co determination rights of the works council. If a works council exists, it should be involved in the planning for the re-opening at an early stage.  

How should an employer handle the initial reopening (notice to employees, PPE availability, employee refusals to return to work, etc.)?
 
Employees should be informed by the employer in advance to the re opening of the contemplated re-start date and whether a gradual or a full re-opening is pursued, as well as about all technical, organizational and personnel measures taken (to the extent the respective employees are affected by these measures). Employers should further provide for clear and well-structured practical advice to their employees and implement policies, including on how the employees have to conduct themselves when being on-site (e.g. usage of protective equipment of any kind and work clothing, regular cleaning obligations, minimum distance requirements). In addition, if the employer’s planned measures include collection and processing of employee health data, the employer needs to provide the employees with a privacy notice in compliance with GDPR on such data processing.
 
Following notice of the re-opening of the business, employers may face the situation that certain employees refuse to return to work due to the continuing pandemic. Beyond the scope of official shutdown or quarantine orders and in the absence of a contractual entitlement of individual employees to work from home (which may also be based on collective agreements), employees do not have a general right in Germany to continue working from home if the employer re-opens its business on-site. Unless a valid legal justification for an individual employee’s refusal to work on-site exists, an employer is not obliged to continue salary payments for employees refusing to return to work. Generally accepted justified reasons for a refusal to commence working in the employer’s premises are childcare obligations (to a certain extent), or the existence of an objective and substantial threat for the employee’s health or life, i.e., cases where the employer does not provide for the critical and required work safety measures on-site to prevent infections. Employees refusing to return to work for such justified reason retain their salary entitlements, however, in the event of childcare obligations, generally only for a limited period in time of up to five working days.  

What are the key considerations in continuing operations (dealing with employee cases, leave administration, failure to follow social distancing requirements, etc.)?
 
Once the business has re-opened, employers should frequently review their implemented policies and safety measures, with a particular view on employees’ acceptance of and compliance with the established protection measures. Employees failing to comply with the protection measures, for example, not following the required social distancing rules, should be orally warned by the employer immediately and, if failure to comply occurs deliberately or again following an oral warning, the employer may need to provide the respective employee with a formal written warning. An employer may further be required to dismiss an employee constantly refusing to comply with the required protection measures for cause, considering the employer’s duty of care for the remaining workforce.
 
Employers must have established a procedure for dealing with suspected infection cases of employees in a timely manner, ensuring that employees identified as showing respiratory symptoms or fever are being asked to leave the premises immediately. Furthermore, employers should have specific procedures in place in the event of a confirmed infection of an employee or customer in order to be able to inform contact persons, and they should be able to provide sufficient documentation of their compliance with these policies and procedures in the event of a suspected or confirmed infection. Public health authorities (Gesundheitsämter) are entitled to review and audit whether the required workplace safety measures have been taken (depending on the respective operation).
 
Key considerations an employer may need to take apart from the vital aspects of maintaining employee and customer health and safety when re-opening the business include dealing with vacation requests of employees during the period of increasing business / staffing needs while the economy recovers, planning holidays well in advance, and arranging for overtime work including on weekends (to the extent permitted by law) to cope with backlog of orders. Employers should further prepare for a potential second wave requiring another closure of the premises, for example, by ensuring that their employment agreements contain flexible working time and home office clauses as well as legally valid clauses governing short-time work instructions, and making necessary arrangements with works council.

    

Greece

Content provided by Karatzas & Partners

Contact:
 
Current national guidance or requirements regarding returning to work 
 
Affected businesses can adjust the working schedule of their employees to their operating hours. This adaptation may not alter the type of the employment agreement. 
 
Each employer is entitled to unilaterally introduce remote working (work-from-home). This provision will remain in force until 31.5.2020. 
 
As long as the emergency measures are in force and in any case for a period which cannot exceed 6 months, employers of affected businesses can decide to appoint so-called Safety Operation Personnel. Under this scheme, each employee must be employed for a minimum of two weeks every month, while each week at least 50% of the personnel must be employed. The above schedule shall be determined on a weekly basis. 
 
It is noted that the maintenance of the same number of employees constitutes a prerequisite for the operation of a business with Safe Operation Personnel. The employer must submit all relevant information to ERGANI Digital Information System under a specific form within the first 10 days of the following month. Exceptionally, regarding March 2020, this form must be submitted until 10.5.2020. 
 
Parents working in private sector are entitled to a “special purpose” paid leave of at least three (3) days accompanied by one (1) day of regular annual leave day until 24.04.2020. The above leave is to be divided between both parents, if both parents are employed. In cases where one parent is not employed, the “special purpose” paid leave will only apply exceptionally. This leave will be funded up to 2/3 by the employer and 1/3 by the state budget. Parents working public sector will be entitled to four (4) days of leave three (3) days “special purpose” paid leave and one (1) day of regular annual leave. The submission of the relevant form to ERGANI Digital Information System must be completed within the first 15 days of the following month. Exceptionally, regarding March 2020, this announcement must be submitted until 15 May 2020.

Logistical limits regarding social distancing and size of meetings 
 
Professional meetings of all kinds in the private sector are strongly recommended to be held through teleconference. On the other hand, meetings conducted within public authorities and the courts are not allowed to take place with a physical presence of the participating individuals. Social distancing of (2) two meters is a rule applied to all activities in everyday life, especially regarding private meetings, which are strongly recommended to be held outdoors and up to 4 people. 
 
More specifically, similarly to the facilitation of the general meetings of shareholders or partners through teleconference, paragraph 3 of article 33 of the Legal Act dated 20.03.2020 permits the adoption of resolutions by board of directors of private law legal entities through teleconference and by using any telecommunication means that can facilitate the participation for all or some of their members, as well as decisions adopted without a meeting taking place, where all members of the board of directors have signed the relevant decision. 
 
In all cases mentioned above, the signatures of the members of the body can be replaced with the exchange of correspondence either by exchanging e-mails or other electronic means. This provision is applicable from 30 March 2020 (date of publication of Legal Act dated 30.03.2020 which amends Legal Act dated 20.03.2020) until 30 June 2020.

Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
No provisions adopted by the Government. 
 
Cleaning recommendations or requirements
 
No provisions adopted by the Government

Compensation or remuneration issues
 
Businesses and employers which have suspended their operations by virtue of the imposed measures shall suspend employment agreements. Any unpaid leave which has been agreed upon for this period is rendered invalid. The relevant employment contracts are suspended, and the employees are entitled to a special purpose compensation. Other affected businesses and employers are given the option to suspend all or some of the employment agreements which were in force in 21.03.2020, for (45) forty-five days, a term which may be extended. 
 
Businesses can proceed to such suspensions at any time within the period from 21.03.2020 until 20.04.2020, a period which might also be extended. Businesses and employers which have suspended their operation by virtue of the imposed measures shall not reduce their personnel by terminating employment agreements for the duration of the emergency measures. Both the obligation for provision of labor and that of compensation are halted, as the suspension of the operation of the business was imposed by a public authority, qualifying as force majeure. Affected businesses and employers which have utilized the option to suspend employment agreements are also prohibited from reducing their personnel by terminating employment agreements. They are also required to maintain the same number of jobs after the expiry of the suspension period for another forty-five days, except for resignations, retirements, and fixed term employment agreements which expire earlier. Any such termination taking place after 18.03.2020 will be invalid. A “special purpose” compensation of €800 will be given to employees whose employment agreements have been terminated or they have resigned in the period from 01.03.2020 to 20.03.2020. This compensation is not taxed and can neither be confiscated nor set off. 
 
For employees of affected businesses all scheduled payments of social security contributions as well as instalments under debt settlement schemes with the social security authorities due on 31.03.2020 are suspended for three months, without accrual of interest or surcharge. Further, payments of debts to the Greek Tax Authorities and schedule payments in the context of a debt settlement scheme with the Greek state, due from 11.3.2020 until 30.4.2020, are deferred until the 31st of August 2020.
 
Lastly, it is highlighted, that the process for the determination of the minimum wage is postponed and set to be completed on January 2021.
 
Data collection and privacy
 
The data protection rules shall not prevent private entities and public authorities from the adoption of measures to fight the coronavirus pandemic, provided that the data processing is lawful and the data processing principles, as set out in Article 5 and 6 of the GDPR, such as data minimization, transparency, data security, and data retention are upheld.
 
In the employment context, Law 3850/2010 and other provisions in force establish employers’ responsibility, on the one hand, to ensure health and safety of their employees by undertaking preventive measures for guaranteeing a safe and healthy working environment, while employees, on the other hand, are also required to apply health and safety rules including to report immediately any incident that may pose a direct and serious threat to the health and safety. In light of this, employers may lawfully process personal data under the appropriate legal basis of art. 6 GDPR. In particular, employers may proceed to such action, in case processing is necessary for them to comply with their foregoing obligations (art. 6 par. 1c’) or in order to protect the vital interests of their personnel (art. 6 par. 1d’), or processing is necessary for the performance of a task carried out in the public interest (art. 6 par. 1e’). In this regard, the monitoring of epidemics is a type of processing, which may serve important grounds of the vital interests of the data subject, as confirmed by recital 46 of the GDPR. In relation to employees’ sensitive data, far stricter rules apply. Employers may lawfully process special categories of employee data only if the legal basis of art.9 par. 2b’ (carrying out obligations in the field of employment, social security and social protection law), e’ (processing of personal data made public by the data subject) or h’ (processing for the purposes of preventive or occupational medicine, etc.) are met.
 
Additionally, corporations and public authorities must be transparent regarding the measures they adopt, including the means and purpose of data collection. They must ensure that employees are aware of what data is being processed, why and with whom it is being shared in a way that is accurate, easily accessible and intelligible. Given the fact that the processing concerns sensitive data, a Data Protection Impact Assessment (DPIA) would be advisable. 
 
Any data processing in the context of mitigating the effects of COVID-19 must be carried out in a manner that ensures security of the data, especially when sensitive data is involved. The identity of affected individuals should not be disclosed to any third parties or to their colleagues without a clear justification.
 
Pursuant to art.5 GDPR, only the minimum necessary amount of data should be processed by public authorities and companies, to achieve the purpose of implementing measures to prevent the spread of COVID-19. 
 
Given the sensitivity of personal data, employers and public authorities should store data securely and for no longer than is necessary for the purpose for which it was processed. Businesses should aim to keep the retention period to a minimum, whilst taking into account any local regulatory or legal requirements and the limitation periods for personal injury/health and safety claims.
 
The links to relevant client briefings are the following:
 
 
 
 

     

Norway

Content provided by BA-HR Law Firm
 
Contact:
Børre Sofus Arnet
Partner
 
Current national guidance or requirements regarding returning to work
 
Norway has step by step started to release the most comprehensive Covid-19 restrictions. However, the recommendation from the government to employer’s is still to facilitate working from home and flexible time arrangements to the extent possible. This is particularly relevant in areas where employees are dependent upon public transport to commute, such as the main cities.
 
Although presence at the workplace is permitted, the advice is to avoid opening it for all employees at the same time. The employer should undertake a risk evaluation and assess whether physical presence for all/some employees is necessary for business operations. For instance, exceptions could be made for employees who due to various reasons have a need to be at the workplace in order to perform their duties, nature of certain task and efficiency considerations, if there is a need for access to digital systems that require presence at the office, if the employee(s) do not have satisfying home office facilities, e.g. slow internet connection etc.
 
For employees who aim to re-enter the workplace, one option is to try to organize the work in fixed teams and/or rosters to limit coincident presence of large groups. Moreover, guidelines should be set outlining distancing requirements between employees and others, together with physical measures such as easy accessible disinfectants, reduced use of certain facilities etc. A combination of work from home and office work could also be considered, in order to mitigate dissemination. Employees deemed to fall within high-risk groups, should continue to work from home.

Logistical limits regarding social distancing and size of meetings
 
The updated recommendation from the government is to keep a physical distance of at least one meter between individuals in public, including employees at workplaces and between employees and customers/users/clients. However if a conservative approach is desired, two meter distance can be considered. According to the Norwegian Institute of Public Health, there is a risk of quarantine if a person has been closer than two meters for more than 15 minutes to another person who is confirmed infected by Covid-19.
 
From 7 May 2020, the government allowed gatherings up to 50 people in public places and 20 people in private spaces. For such events, there must be a “responsible organiser” who has a complete overview of those present, so that contact tracing is possible if required, and necessary distance maintained between the participants.

Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
Please note that there are currently no testing requirements or recommendations.

Cleaning recommendations or requirements
 
In terms of cleaning, the recommendation is to ensure intensified, thorough and systematic cleaning, especially for frequent touch points (coffee machines, elevator buttons, door handles etc.). Everyone must wash frequently wash their hands and hand disinfectants and extra tissues should be available at entrances, in canteens (if open) and all other places (including in sanitary areas).
 
Compensation or remuneration issues
 
The Norwegian Labour and Welfare Administration (NAV) has taken the position that employees who are required to stay home from work due to Covid-19 will be entitled to sick pay, if they are unable to work from home. The employee will be entitled to sick pay, even if the employees do not have any symptoms or have been diagnosed with Covid-19 insofar as there is a suspicion.  This favourable condition will most likely not apply if the individual deliberately has acted contrary to the advice given by the authorities.
 
Normally, the Norwegian National Insurance Scheme requires an employer finance period of 16 calendar days before the state takes over the responsibility to provide sick-pay. The employer-finance period is reduced to three days as a temporary Covid-19 measure. The employee must however document that the absence is due to Covid-19, either through self-certification or a medical certificate. The government has in the present circumstances encouraged employers to accept self certification for a period up to the original employer-financed period of 16 calendar days, and thus providing for an exemption of the main rule of medical certificate to document absence due to sickness. This is mainly done to lessen the burden on the general practitioner’s.

Data collection and privacy; and Other important issues. 
 
If an employee or a family member are confirmed infected by Covid-19, the employee shall inform the employer immediately and contact the municipal health service/general practitioner pursuant to applicable guidelines. Employers on the other hand should have a contingency plan covering various scenarios at the workplace, including how to handle employees that become infected, internal communication etc. For the sake of order, please note that employers’ should exercise caution handling personal data in this regard, especially the risk of identifying  employees who have tested positive, unless strictly necessary. In any case, the employee(s) in question should be informed and consulted in advance.

   

Portugal

Content provided by Abreu Advogados
 
Contact:
Pedro Pais de Almeida
Partner
+351 21 723 20 07
ppa@abreuadvogados.com
 
In the context of the public health emergency of international concern caused by COVID -19, the Government adopted Decree Law no. 10  A/2020, of 13 March, setting forth exceptional measures to address the epidemiological situation.
 
After this period, considering that there are still new cases of infection in Portugal and the end of the pandemic is unpredictable, extraordinary measures that guarantee a capable response to the coronavirus disease are still called for. Although the previous measures have been relaxed, action adopted under Decree-Law no. 10 -A/2020, of 13 March, and others, helps to mitigate the risk of backtracking in the containment of the transmission of the virus and the propagation of the coronavirus.
 
Transport
 
Public or private entities responsible for delivering passenger transport services shall ensure, cumulatively:
 
  • Maximum passenger capacity of 2/3 in land, river and sea transportation;
  • Adjustment of the maximum number of passengers carried by air, imposing the upper limit in accordance with the recommendations on maximum capacity, as laid down in an ordinance of the member of the Government responsible for air transport;
  • The daily cleaning, weekly disinfection and monthly hygiene of cars, facilities and equipment used by passengers and others, in accordance with the recommendations of the health authorities.
 
In taxis and private vehicles for app-based ridesourcing services, only the driver may sit in the front and the maximum occupation of the vehicles by passengers shall not exceed the recommendations on maximum capacity, as laid down in an ordinance of the members of the Government in charge of transport and the environment. The renewal of the air inside vehicles and the cleaning of the surfaces must be ensured.
 
Without prejudice to the provisions of the preceding paragraphs, other measures which are appropriate and necessary to safeguard public health may be adopted, such as forbidding the sale of tickets on board, putting a physical barrier between the vehicle’s driver and passenger areas and providing hand sanitiser gel or solution.

Face masks and shields
 
The use of face masks or shields is made mandatory to enter shops and offices and in public buildings and services. In schools and day care centres masks and shields must be worn by teaching and non-teaching staff and students over six years of age. 
 
The obligation referred to in the preceding paragraph is waived when, due to the nature of the activities, its use is impracticable.
 
Face mask and shield use is mandatory on public passenger transport.
 
For the purposes of the preceding paragraph, the use of collective passenger transport begins under the terms of Article 2(2) of Law No. 28/2006, of July 4, as currently worded.
 
Public or private persons or entities who are responsible for their premises or establishments, services and public buildings or means of transport, shall promote compliance with the provisions of this Article.
 
Without prejudice to the following paragraph, in the event of non compliance, the persons or entities referred to in the previous paragraph shall inform passengers without masks or face shields that they may not enter, remain in or use the spaces, facilities or passenger transport and they shall report to the authorities and security forces passengers who refuse to comply with that obligation.
 
Failure to comply with the provisions in paragraph 3 shall constitute an administrative offence, punishable by a fine of a minimum of at least EUR 120 and a maximum of EUR 350.

Body temperature control
 
In the current context of COVID-19, and exclusively for reasons of protecting one's own health and of others, employers may measure employees’ body temperature before allowing them to enter the worksite.
 
The provisions of the preceding paragraph are without prejudice to the right to individual data protection, and it is expressly prohibited to record body temperature associated with the identity of the person, unless expressly authorized by the person.
 
If the person’s body temperature is higher than normal, her or she may be prevented from entering the worksite.

Exception arrangement for social support activities
 
During the disaster, social facilities that are operational and are adequately equipped may be used, in accordance with Article 11 and following of Decree-Law 64/2007, of 14 March, in its current wording. 
 
The Instituto da Segurança Social, IP. shall:
 
  • Determine the number of places in these establishments in accordance with the guidelines issued by or in conjunction with the Directorate General of Health;
  • Manage the occupation of these places, which shall be occupied first by people discharged from hospital and people with other needs detected in the community.
 
This provisional operation licence expires on 30 September 2020, after which the regular operation license procedure must be resumed and concluded, safeguarding, in legal terms and whenever possible, the continuity of the activity initiated.
 
During the disaster the use of the building space may change temporarily, in relation to what is currently established, either concerning the social facilities highlighted in paragraph 1, or those that are in operation, licensed and/or with a cooperation agreement.
 
In compliance with the rules and guidelines of the Directorate General for Health, and for the purposes of the measures provided for in this Article, the capacity of each facility may also be redefined.

Maintaining an employment contract in a business crisis situation
 
Undertakings with establishments whose closing restrictions and other restrictions, as stipulated in Decree 2-A/2020, of 20 March, or a legislative or administrative order, pursuant to Decree-Law 10-A/2020, of 13 March, as amended, or under the Basic Law on Civil Protection, approved by Law 27/2006, of 3 July, as amended, or the Basic Law on Health, approved by Law 95/2019, of 4 September, have been lifted, may still apply to the simplified lay off arrangement, laid down in Decree Law 10 G/2020 of 26 March, as currently worded, provided they resume activity within eight days.
 
The extraordinary financial incentive to support the return to the usual activities of the company provided for in Article 10(1) of Decree-Law No. 10 -G/2020 of 26 March, as currently worded, is regulated by an ordinance of the member of the Government responsible for the area of employment, particularly with regard to procedures, conditions and terms of access.
 
For the purposes of non-compliance and refund of the extraordinary support for maintaining an employment contract in a company in a crisis situation, as provided for in Article 5 of Decree-Law No. 10 -G/2020 of 26 March, as currently worded, Article 303(1)(e) of the Labour Code, approved in an annex to Law No. 7/2009 of 12 February, as currently worded, does not apply to the part referring to contract renewals.

Risk assessment at the worksite
 
For the purposes of the provisions of Law No. 102/2009 of 10 September, as currently worded, companies shall prepare a contingency plan that is adjusted to the workplace and in accordance with the guidelines of the Directorate General of Health and the Authority for Working Conditions. 
 
Abreu Advogados Covid-19
Helpdesk:

   

Romania

Content provided by Mitel & Asociatii
 
Contact:
Alina Buculei
Managing Associate
 
Two months after the state of emergency generated by the Covid-19 pandemic, the Romanian Government has announced a gradual end to some of the lockdown measures. However, considering the persistence of infections in Romania, which piles up pressure on the national health system, on May 15, 2020, a nationwide state of alert was declared for a 30-day period.
 
The state of alert has brought new challenges or adjustments while returning to work, as listed below.
 
Current National Requirements for Returning to Work
 
(As per Annex 2 of Decision no. 24/2020 approving the state of alert at national level, as well as specific measures for controlling and preventing the spread of Covid-19 (“Decision 24/2020”)
 
Employers should conduct a selection of employees in order to identify those whose activity is essential and cannot be postponed/ performed remotely and, where possible, work should continue to be carried out remotely.
 
For those resuming work, employers who have more than 50 employees must implement staggered hours so that the start time and end time occur at least every hour, during at least 3 hours, in groups of at least 20% of the personnel. 
 
Furthermore, employers must conduct trainings in terms of health and safety with all employees who performed their activity remotely or suspended their activity (as per art. 1 par. (1) of Order 3577/2020 on the measures for preventing contamination with the new SARS-CoV-2 coronavirus and for ensuring that the activity at the workplace is conducted under occupational health and safety conditions, throughout the state of alert).
 
Wearing facemasks becomes mandatory in the workplace and in any other enclosed areas.

Cleaning Requirements
 
As per Annex 2 of Decision 24/2020, Law no. 319/2006, Government Decision no. 1425/2006 on health and safety at work, Order 3577/2020, employers must implement the following main cleaning requirements:

a) to ensure disinfection of hands before employees enter workspaces;
 
b) to display the mandatory rules of conduct, including posters on how to correctly wash one’s hands at the entrance and in the most visible areas of the unit;
 
c) to permanently supply, in toilets, locker rooms and dining areas, soap and hand disinfectant;
 
d) to instruct that offices be aired out at least once a day;
 
e) to avoid using the air conditioning system or, if necessary, to ensure the nebulization and disinfection of the air conditioning system according to the manufacturer’s instructions, outside the working hours;
 
f) to disinfect the handrails, door handles and windows inside the unit, other extensively used areas, the common areas and workspaces (at least once a week and whenever necessary);
 
g) to frequently disinfect the areas exposed to the public.

Logistical Limits regarding Social Distancing and Size of Meetings
 
The new work environment imposes the social distancing rules indicated below. The health and safety representatives of employees should be consulted in order to enable the employer to take the necessary actions and measures for prevention of Covid-19.
  • a minimum social distance of 1.5 m must be maintained between employees/employees and clients (in workplaces open to the public) by means of barriers, markings or access regulations;
  • if possible, employees should work in shifts. Organisational measures (e.g., arranging the time of lunch breaks and circulation of documents by electronic means) must be taken in order to prevent employees from getting too close to each other;
  • business trips and meetings must be limited and, if necessary, must occur by observing the hygiene and social distancing rules. During the state of alert, travel outside the city of residence is prohibited, except for justified reasons, such as professional purposes.
Testing Requirements or Recommendations including Employee Monitoring. Data Collection and Privacy 
 
The Data Protection Authority had issued a press release on the processing of health data in the context of Covid-19. However, this press release is rather theoretical, stating that:
 
  • Controllers may process health data by observing art. 9 par. 1 and 2 a), b), h), i) of the General Data Protection Regulation 2016/679 (“GDPR”);
  • Data subjects must be informed about the processing of their health data, as required under art. 13 and 14 of the GDPR;
  • The name and health condition of a particular person may be disclosed to the public with the prior consent of that person.
During the state of alert, processing of health data has been given the green light. Employers must ensure, when entering the building and whenever necessary, the mandatory epidemiological triage, both for their own personnel and for visitors, consisting in taking temperatures by using a non-contact thermometer (as per art. 13 of Decision 24/2020). Employers should designate a person in charge of taking temperature.
 
Since employers should refrain from collecting in a systematic and generalized manner information on the potential infection of employees, collecting body temperatures must be kept to the minimum necessary. Therefore, employers should only read body temperatures, not retain any data.
 
Data should be collected in compliance with the GDPR principles. The consultation of the employees’ representatives is required (as per art. 5 par. 1 d) of Law 467/2006 on the general framework for consulting employees’ representatives). 

Compensation or Remuneration Issues
 
Many employers have already frozen salaries and bonuses and have implemented various options for downsizing their activity.
 
The Romanian Government has passed some enactments meant to support employees during this crisis, namely:
 
Paid Time off Awarded to Parents to Care for their Children
 
The Covid-19 pandemic has been challenging for parents due to the closure of schools and childcare facilities. In this context, the Romanian Parliament issued Law 19/2020 requiring employers to grant time off to employees who are in these situations (as per art. 1 of Emergency Ordinance 41/2020) and cannot perform their work remotely. Adopters/ legal representatives/ persons with whom children are placed or children’s guardians who care for children younger than 12 (or disabled children younger than 18) may also benefit from these legal provisions.
 
As per art. 21 of Law 55/2020 on measures for preventing and controlling the effects of the Covid-19 pandemic, until the end of the 2019-2020 school year, employers must grant days off due to the closure of school and childcare facilities.
 
Allowance for Temporary Layoff
 
In the case of a temporary reduction and/or disruption of activity due to the Covid-19 pandemic, employment agreements of employees involved in such activity may be temporarily suspended. Employers are still required to pay their employees an allowance. In order to avoid redundancies, during the state of emergency, this allowance consisting of 75% of the salary corresponding to one business day, but no more than the equivalent per day of 75% of the national average gross salary, which currently amounts to RON 5,429 (gross), was reimbursed to the employer from the State budget.
 
The allowance shall be granted until May 31, 2020 and, after this date, only for certain areas where restrictions will be maintained (as per Emergency Ordinance 32/2020 and Law 55/2020).
 
Other Important Issues
 
Under certain conditions, companies may benefit from tax facilities, deferral of payments/rents/ loans and a governmental program for SMEs.

     

Russia

Content provided by Dechert LLP

Contact:
Laura Brank

Partner
+7 499 922 11 00
laura.brank@dechert.com

As of May 12, 2020, the period of so-called "non-working days" established by Presidential Decrees No. 206, dated March 25, No. 239, dated April 2, and No. 294, dated April 28 in Russia officially ended.1 Although most of the COVID-19 protective measures still apply at the regional level, Russian federal and regional authorities are expected to issue further regulations and guidance regarding the easing of COVID-19 related restrictions in the coming days.2 With that in mind, employers are considering return-to-work plans. In this OnPoint, we will outline a number of issues which employers will need to address in the course of getting employees back to work (with a focus on employers located in Moscow). 

What does the end of non-working days mean?

Although the "non-working days" established by the Presidential Decrees3 have ended, regional authorities may introduce and/or extend restrictions on the activities of certain businesses (with the exception of those specifically exempted from such restrictions, e.g. organizations with continuous operations, healthcare and pharmaceutical organizations, etc.) depending on the situation in a particular region. Employees of businesses which are subject to restrictions should continue to be paid their normal wages. In terms of Moscow, according to Moscow Mayor Sobyanin Order No. 12-УМ, dated March 5, 2020 (as amended) (“Moscow Order”),4 there are businesses:

  • whose activities are suspended – their employees should not and may not return to the workplace
  • where visits to their premises are suspended – their employees should not, and may not, return to the workplace; and
  • where visits to their premises were not suspended or have resumed – their employees may return to the workplace and visitors may enter their premises subject to certain requirements. 
What requirements should employers meet with respect to the workplace?
 
Employers should review and comply with COVID-19 related regulations and guidance adopted by both federal and regional authorities relating to returning to work (e.g. sanitary rules, use of personal protection equipment (“PPE”), social distancing, etc.). Under the Moscow Order, employers whose employees may return to work should:
  • ensure that employees wear masks/respirators at their work places and/or within company grounds, except where employees have separated spaces and no one else is around them;
  • ensure that employees wear gloves at their work places if they are not isolated from others and are in common areas
  • arrange for temperatures of employees to be taken no less than once every four (4) hours including at the entrance to the workplace or company grounds 
  • ensure compliance of the workplace with social distancing rules or installation of dividers in the workplace, and 
  • ensure compliance with the recommendations of Rospotrebnadzor to prevent the spread of COVID-19.
What key steps should employers take prior to the return of employees to the workplace?
 
Subject to applicable laws and regulations, employers should:
  • Decide which employees may return to work based on operational needs and which employees may continue working remotely, where practicable
    • Those employees whose presence in the workplace is required due to operational needs may return to work, subject to applicable laws and regulations. If any such employees are on vacation, employers may recall them before the end of the vacation period subject to their consent (in such case employers will have to issue respective orders). If any such employees are working remotely based on relevant addenda made to their employment agreements, they may return to the workplace only upon execution of new addenda, which must terminate any provisions relating to remote work. Under current Russian law, it is, unfortunately, not possible to state that employees can work both in the workplace and remotely, based on a particular schedule in their employment agreements. The relevant amendments to Russian law which would permit this  type of arrangement are under discussion.

      Once such a schedule is established, with the consent of the employee, it should not violate Russian employment law.  Those employees whose presence in the workplace is not required may be retained as remote workers but addenda to their employment agreements may be required to extend the term of working remotely. 

  • Adopt and/or revise local regulatory orders in connection with the return of employees to the workplace and train employees in advance on requirements with which they will need to comply upon their return to the workplace (e.g. use of PPE, etc.);
    • Such local regulatory orders may include rules on sanitary and other protective measures, testing for COVID-19, reporting symptoms, etc. All new local regulatory orders and revisions thereto should be acknowledged by employees;

  • Carry out a workplace risk assessment;
    • Employers may need to alter the workplace (e.g. rearrange work places, install dividers, etc.) to ensure compliance with applicable laws and regulations. It should be noted that some changes in office premises may require consent from landlords so lease agreements should be reviewed to confirm;

  • Consider appointing an employee to be responsible for implementation of protective measures at the workplace.
Which employees are not allowed to return to the workplace?
 
Subject to applicable laws and regulations, employers may be prohibited from allowing certain employees entry to the workplace. For example, under the Moscow Order, the following employees should not be allowed in the workplace and/or company grounds: 
  • employees subject to self-isolation, (those over the age of 65, etc.) with the exception of those employees whose presence in the work place is critical for the company's operations;
  • employees diagnosed with diabetes mellitus, obesity, hypertension 2, chronic obstructive disease, bronchial asthma 2;
  • pregnant women; and
  • employees who themselves, or whose cohabitants, display symptoms of, or are diagnosed with, flu, COVID-19, or pneumonia.
The Moscow Order requires employees to report on the above circumstances. With respect to the above employees, they may either continue working remotely, if possible, or take a leave of absence if they are diagnosed with flu or COVID-19 and are not able to work. Furthermore, if the above employees are not diagnosed with flu or COVID-19 and, thus, are not entitled to take a leave of absence but cannot work remotely due to their job functions or any other reason, employers may discuss with such employees taking paid vacation days or unpaid vacation days subject to their consent. 
 
What can be done if an employee refuses to return to the workplace
 
If an employee refuses to return to the work place/ the employer’s premises due to the threat of COVID-19 or any other reason (childcare, employee’s uncertainty that an employer has taken sufficient protective measures, etc.), then, provided that such an employee was previously moved to remote work, the employer cannot force him/her to return to the workplace since mutual consent is required (as mentioned above, it is necessary to execute an addendum to his/her employment agreement in order to terminate the provisions regarding remote work). If remote work has not been introduced or has been terminated (e.g. due to expiration of the term), then refusal to return to the workplace may be a ground for dismissal of such employee. However, before any disciplinary action is taken (including dismissal), it is advisable for employers to confer with such employee and consider various options available under Russian employment law to allow the employee to work to the extent practicable (for example, to continue to work remotely, or follow a specific work schedule (by shifts), etc.). 
 
Are there testing obligations for employers?
 
Subject to applicable laws and regulations, employers may be required to carry out (or procure the carrying out of) testing of employees. For example, under the Moscow Order, employers must:
  • conduct COVID-19 tests with respect to not less than 10% of employees (in the office/at the work premises) from May 12, 2020 through May 31, 2020,
  • conduct COVID-19 tests with respect to not less than 10% of employees starting from June 1, 2020, every 15 days;
  • ensure that employees are tested for COVID-19 and immunity to it based on terms and procedures approved by the Moscow Health Department.
What cost cutting measures can be considered by employers?
 
In general, cost-cutting measures with regard to employees may be difficult to implement due to the need to obtain the consent of employees in a number of cases (except in the case of redundancy).However, some options may be available, subject to compliance with the requirements of Russian employment law, including the provision of proper notice and acquisition of consents. These include:  
  • introduction of part-time work for certain employees upon execution of appropriate addenda to their employment agreements or in exceptional cases, at the employers’ initiative, up to six (6) months;
  • providing employees with paid and/or unpaid vacation days subject to their consent, or in accordance with a vacation schedule;
  • change/cancellation of bonus/salary increase policies; and
  • decrease salaries.
Although redundancy measures are not expressly prohibited by COVID-19 related regulations, they would may be frowned upon by state authorities and businesses implementing such measures may not be entitled to COVID-19 related support measures. The laws and regulations related to the easing of COVID-19 related protective measures are changing rapidly and thus new rules and regulations are likely to be adopted. We will continue to monitor the situation and provide updates as new developments occur.
 
Footnotes:
  1. http://publication.pravo.gov.ru/Document/View/0001202005110002
  2. https://www.rospotrebnadzor.ru/upload/%D0%9C%D0%A0_%D0%BF%D0%BE%D1%8D%D1%82%D0%B0%D0%BF%D0%BD%D0%BE%D0%B5 %D1%81%D0%BD%D1%8F%D1%82%D0%B8%D0%B5 %D0%BE%D0%B3%D1%80%D0%B0%D0%BD%D0%B8%D1%87._08.05.2020.pdf
  3. https://info.dechert.com/10/13851/april-2020/non-working-days-extended-until-april-30-while-moscow-mayor-issues-further-restrictions.asp
  4. https://www.mos.ru/upload/documents/docs/61-YM(2).pdf
 

    

Spain

 
Contact:
Isabel Aguilar Alonso
Counsel

Current national guidance or requirements regarding returning to work
 
Spain has initiated the process of gradually lifting the extraordinary measures restricting mobility and social contact. On 28 April 2020, the Council of Ministers adopted the plan for the transition to the “new normal” (official summary in Spanish can be accessed here), which establishes the main parameters and instruments for achieving this, including in connection with the return to the workplaces. The process, which is broken down into four phases going from phase 0 to phase 3 (from the most restrictive to the least), is gradual and adaptable depending on the evolution of epidemiological data and the impact of the measures adopted. 
 
As of 18 May 2020, most of Spain is already in phase 1 (which involves a relaxation of the measures affecting, among other areas, mobility, retail and the provision of services). The exceptions to this are certain islands which are already in phase 2, along with the autonomous community of Madrid, the Barcelona metropolitan area and certain areas of the autonomous region of Castilla y León, which all remain in phase 0 although with fewer restrictions.

Logistical limits regarding social distancing and size of meetings
 
If possible, those employees who are able to work remotely are being encouraged to continue doing so.
 
Employers must make the necessary adjustments to their schedules so as to avoid the risk of a mass influx of people – whether or not they are employees – into workplaces during those time slots when the highest influx or concentrations are expected, taking into account the geographical area.
 
Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
No testing requirements or recommendations have been approved by the Spanish government although some companies have internally decided to test their employees as part of their measures to ensure the minimum risk of infection for those employees going back to the workplace.

Cleaning recommendations or requirements
 
Employers must ensure that water and soap, or alcohol-based gels or disinfectants with virucidal properties that have been authorised and registered by the Ministry of Health, are available at the workplace. Likewise, when the safety distance of approximately two meters between all individuals cannot be guaranteed, it must be ensured that workers have personal protective equipment appropriate to the level of risk. In this case, all personnel must be trained and informed on the correct use of the aforementioned personal protective equipment.

Compensation or remuneration issues
 
The most far-reaching compensation to date is the compulsory paid leave established by Royal Decree-Law 10/2020. Its aim was to restrict mobility in order to reduce the spread of COVID-19. To this end, the strategy was not to introduce an outright ban on certain activities, but rather to implement a compulsory period of paid leave between 30 March and 9 April 2020, both inclusive, although workers providing activities considered to be essential were excluded from its application.
 
Under this regime employees retained their right to receive the wages they would have earned under normal circumstances, including their basic salary and pay supplements.
 
The wages and terms and conditions applicable to employees under a temporary layoff (an “ERTE”, for the Spanish acronym) depended on the type of layoff adopted by their employer (force majeure, drop in demand, insolvency, etc.).
 
Data collection and privacy
 
In order to provide guidelines on the legality of processing health data by authorities and companies when managing the health crisis, the Spanish Data Protection Authority (“AEPD”) published on 12 March 2019 a legal report regarding the processing of personal data in Spain including health data, with regard to which the following is especially worth highlighting:
  • The GDPR acknowledges both the public interest and the preservation of vital interests as grounds for data processing. The AEPD notes that protecting vital interests refers not only to the protection of the relevant data subject but also the vital interests of third parties. These legal grounds allow data processing without the data subject’s consent.
  • When handling of the health crisis also requires the processing of health data which, as we note, is subject to additional restrictions, the AEPD acknowledges that such processing may be legal in the following cases:
    • When necessary to comply with obligations regarding labour law and company security and protection. Here, the AEPD notes that the information sought by the company “must meet the principle of proportionality and be limited to enquiring about visits to countries with a high prevalence of the virus and within the timeframe of incubation of the disease, the past two weeks, or whether they suffer from any symptoms of the disease. The use of extensive and detailed health questionnaires or those including non-disease related questions would be contrary to the principle of data minimisation.”
    • When covered by other causes acknowledged in article 9 of the GDPR, such as public interest regarding public health (e.g. protection against serious cross-border threats to health) or for medical diagnoses. The report notes that public health protection has been attributed by law to the competent health authorities and therefore they can implement such protective measures. The data controllers (i.e. the companies) must follow the instructions of the authorities.
Other important issues 
 
Specific measures have been adopted regarding the supply of necessary goods and services to ensure the availability of essential products (not only medicines or medical devices). Restrictions have been imposed on the distribution of all stocks of certain drugs and specific obligations have been established for manufacturers and holders of marketing authorisations.
 
From a financial point of view various measures have been adopted, including a mortgage payment moratorium of three months (although it may be extended) for those borrowers classed as especially vulnerable.
 
Measures to foster liquidity have also been implemented by the government through different mechanisms, such as a government backed guarantee scheme and an increasing of the net borrowing capacity of the Official Credit Institute (ICO). Other aid plans have also been adopted, including extraordinary insurance coverage and a guarantee line for financial institutions that grant financing to companies and self-employed workers. 
 
Online resources on COVID-19 published by Uría Menéndez can be found in the following link. Our Guide to key legal matters relating to the COVID-19 health crisis may be of special interest. The official channel of the Spanish Ministry of Health for COVID-19 issues can be accessed in the following link.

   

Sweden

Content provided by Advokatfirman Vinge KB
 
Contact:
Yohanna Öhrnegård
Partner

Current national guidance or requirements regarding returning to work
 
Sweden has not imposed any major shutdowns or restrictions entailing that everyone should work from home. Employers are encouraged to allow work from home when possible. Consequently, there is no general guidance or requirements on returning to work.
 
However, in a few cases where a larger business has been temporarily shut down, (such as in the case with the Volvo factories), the criteria has been that everyone should be completely well and symptom free before returning to work.

Logistical limits regarding social distancing and size of meetings 
 
As of 29th of March 2020, the Swedish government have prohibited public gatherings and public events where more than 50 people participate. This is one of the very few prohibitions imposed in Sweden (the rest are recommendations).
 
Workplaces and schools are not covered by the prohibition.
 
Employers are encouraged to facilitate for their employees by inter alia:
 
  • adapting the workplace so that staff are not at risk of being infected
  • make it possible to work from home to the extent possible
  • adjust working hours so that it is possible to avoid travel in rush hour traffic
  • making sure that employees can avoid unnecessary travelling.

Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
A national strategy has been adopted to ensure that the need for sampling and analysis for covid-19 is met within healthcare and geriatric care, but outside of those areas there are no universal recommendations on testing employees.
   
Cleaning recommendations or requirements
 
Businesses should make sure that staff and visitors can wash their hands with soap and water as well as offer hand-sanitizer. Differences between different businesses, such as size and location, means that the recommendations for different establishments will vary.

Compensation or remuneration issues
 
One of the measures taken by the Swedish Government that has had a large impact is the new legislation allowing trade unions/employees and employers to agree on reduced working hours by either 20, 40, 60 or 80 %. The salary is only slightly affected for the employees and the employer receives compensation from the State to help bear the remaining salary costs. 
 
Compensation from the State is available in respect of a monthly salary which does not exceed SEK 44,000. Support will be limited to a period of six months, which may be extended for an additional three months. The new legislation aims at capturing the situation where an employer suffers from temporary and serious financial difficulties which could not reasonably have been foreseen or avoided. The employer’s business must be viable from a long-term perspective in order for support to be available, and it falls upon the employer to show that it is likely that the preconditions for support are met. Companies that recently paid out dividend or are planning to pay-out dividend or similar payments are not eligible for state support.
 
The new provisions entered into force on 7 April 2020 but apply retroactively from 16 March 2020. They will apply throughout 2020.
 
Other measures taken by the State are:
  • Deferred payment of certain taxes
  • State loan guarantee
  • Certain rules relating to employer contributions
  • Temporary discount on rent for commercial buildings for severely affected industries
Data collection and privacy
 
Personal health data such as if an employee has contracted Covid-19 is sensitive and as a main rule it is prohibited for an employer to process such information. However, such processing can be allowed if it is necessary to fulfill the employer’s obligations under employment law.
 
In several countries the use of services that track the spread of infection through location data from mobile networks or apps are being used. The Swedish Data Protection Authority states that if they receive a request or a request for prior consultation from any business or actor working with digital infection tracking where personal data is handled, it will be a priority. So far, the Swedish Data Protection Authority has not received any such request.
 
Read more at (only in Swedish) https://www.datainspektionen.se/corona/

   

Switzerland

Content provided by Lenz & Staehelin

Contact:
Dr François Rayroux
Partner
+41 58 450 70 00
Francois.Rayroux@LenzStaehelin.com

Current national guidance or requirements regarding returning to work

The return to work period is governed by the Ordinance on Measures to Combat the Coronavirus (COVID-19) ("COVID-19 Ordinance 2"). 

The Federal Office of Public Health ("FOPH") in cooperation with the State Secretariat for Economic Affairs ("SECO") specifies the public health and employment law requirements for the precautionary measures, pursuant to Article 6 para. 3 and Article 6a COVID-19 Ordinance 2 (https://backtowork.easygov.swiss/fr/).

In this regard, the sectoral or professional associations shall if possible devise general plans for their sectors or field that take account of the requirements published in General Guidance model published by the FOPH. They shall consult their social partners thereon.

Sectors without any sectoral or professional associations shall apply the Standard Guidance published by the FOPH. A different Standard Guidance is published for the following sectors:

  • Shops and markets
  • Garden shops
  • Offices
  • Burial within the family circle
  • Self-service facilities
  • Museums, libraries and archives
  • Businesses offering personal services that involve physical contact
In addition, more specific measures have been published regarding restaurant-type businesses, including cafés, bars and canteens.
 
For the purpose of this drafting, we will refer to the General Guidance model published by the FOPH.
 
Logistical limits regarding social distancing and size of meetings
 
Employees and other people shall keep a distance of two metres from each other.
 
Walking zones and waiting zones, such as one-way paths for walking, consultation areas orconsulting rooms, waiting rooms, staff areas shall be defined.
 
Working spaces shall be separated.
 
Number of customers/clients shall be limited.
 
Further specific measures apply for services requiring a closer physical contact (less than two meters).
 
Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
N/A
 
Cleaning recommendations or requirements
 
Everyone in the company shall clean their hands regularly.
 
Surfaces and objects shall be cleaned regularly and properly after use, especially if they are touchedby more than one person. Ensure safe disposal of waste and safe handling of working clothes.
 
Compensation or remuneration issues
Loans up to CHF 500,000 to SMEs ("COVID-19 Loans") to be 100% guaranteed by the Swiss Confederation. Lent amounts in excess of CHF 500,000 and up to CHF 19.5 million (COVID-19 Plus Loans) to 85% guaranteed.
 
COVID-19 Loans for start-ups that do not generate turnovers and were thus not eligible under the general COVID-19 guaranteed loan program are being rolled out. Since Cantons are guaranteeing part of the loans (along with the Swiss Confederation), the program for start-ups is only available in participating Cantons. Loan applications must be submitted through https://covid19.easygov.swiss  until August 31, 2020.
 
Data collection and privacy
 
The Swiss proximity tracing application, which should help to contain the coronavirus, will be tested in the coming weeks according to the Ordinance COVID-19 on the proximity tracing application test dated 13 May 2020.
 
Other important issues
 
Specific measures applying to persons at high risk:
Person at high risk persons aged 65 and over and persons suffering from any of the following diseases in particular: high blood pressure, diabetes, cardio-vascular diseases, chronic respiratory diseases, diseases and treatments that weaken the immune system, cancer (Art. 10b para. 2 COVID-19 Ordinance 2).
 
According to Art. 10c COVID-19 Ordinance 2:
Employers shall make it possible for employees who are at high risk to carry out their work from home. They shall take the required organisational and technical measures to achieve this (para. 1).
 
If it is not possible for an employee to carry out normal working duties from home, the employer shall in derogation from the contract of employment assign the employee concerned equivalent alternative work that can be carried out from home for the same pay. The employer shall take the organisational and technical measures required to do this (para. 2).
 
If for operational reasons the presence of employees at high risk in the normal workplace is essential, the employees may carry out their normal working duties in their normal workplace provided the following requirements are met:
  • The workplace is organised so as to prevent any close contact with other persons, in particular by providing the employee concerned with his or her own room or a clearly separate working area that allows the employee to maintain a minimum distance of two metres from others.
  • In cases where close contact cannot be avoided at all times, appropriate protective measures shall be taken in accordance with the STOP principle (substitution, technical measures, organisational measures, personal protective equipment) (para. 3).
If it is not possible for the employees concerned to work in accordance with paragraphs 1–3, the employer shall in derogation from the contract of employment assign them equivalent alternative work in their normal workplace for the same pay in conditions which meet the requirements of paragraph 3 letters a and b (para. 4).
 
Before the employer takes any measures, he or she shall consult the employees concerned (para. 5).
 
The employee concerned may decline to carry out work assigned to him or her if the employer fails to meet the requirements of paragraphs 1–4 or if the employee regards his or her personal risk of infection with the coronavirus for specific reasons as being too high despite the employer taking measures in accordance with paragraphs 3 and 4. The employer may request a medical certificate (para. 6).
 
If it is not possible for the employee concerned to work in accordance with paragraphs 1–4, or if the employee declines the work assigned in terms of paragraph 6, the employer shall furlough the employee while continuing to pay his or her salary (para. 7).
 
Employees shall give notice that they are at high risk by making a personal declaration. The employer may request a medical certificate (para. 8).
 
Further resources
  1. Ordinance on Measures to Combat the Coronavirus (COVID-19) dated 13 March 2020 (status as of 14 May 2020) 
  2. General Guidance model regarding precautionary measures, published by the FOPH, version of 14 May 2020 (not available in English) 
  3. Ordinance COVID-19 on the proximity tracing application test dated 13 May 2020 (not available in English)

   

Turkey

Content provided by Hergüner Bilgen Özeke
 
Contact:
Ufuk Yalcin
Partner
 
General Overview
 
Currently, no general lockdown decision has been announced by the Government; however, a lockdown has been recurrently applied during the weekend and during national or religious holidays in major cities such as İstanbul, Ankara, İzmir etc. Citizens below the age of 20 or above the age of 65 and those with chronic diseases are subject to a continuous lockdown for an undefined period of time. Apart from these lockdown decisions, the government announced general shutdown applicable to limited industries  on 16 March 2020.
 
(Currently, the following business cannot reopen until further notice by the government: “Theatres, cinemas, exhibition centres, concert areas, wedding venues, restaurants (allowed to provide take out services/home delivery) and cafeterias with musical activities, clubs, coffee shops, internet cafes, game centres, indoor children playgrounds (including those located in shopping malls and restaurants), clubhouses, amusement parks, swimming areas, saunas, massage parlours, thermal baths, spas, and sports centres.”)
 
There are also travel restrictions in place that prohibit any sort of travel in and out of 15 cities (as of 18th May these cities are Ankara, Balıkesir, Bursa, Eskişehir, Gaziantep, İstanbul, İzmir, Kayseri, Kocaeli, Konya, Manisa, Sakarya, Samsun, Van and Zonguldak) without obtaining prior approval from the governor’s office, unless there is an exemption put in place. 
 
The current national guidance and requirements applicable to returning to work
 
All other workplaces that are outside the scope of shutdown order are free to maintain business as usual and return to work taking necessary precautions.The Ministry of Family, Work, and Social Services (the “MoF”) has announced general guidelines that include the rules and principles that would apply to workplaces as part of the measures taken against COVID-19. The MoF has also been announcing sector specific guidelines for returning to work for industries such as mining, agriculture, food, construction, accommodation, hair salons, banks, metal, retail, oil, etc.
 
The general outline of the rules that apply may be summarized as below:
  • Arranging the workplace observing the social distancing rules. Having a minimum of 1.5 meters in between each employee is required.
  • Having a minimum amount of employee in one room at the same time and allowing remote working to the extent possible.
  • Making employees that show signs of COVID 19 or that fall under risk groups at home, if possible.
  • Disabling the use of systems such as finger scanners to enter the workplace.
  • Arranging the use of elevators in accordance with the social distancing rules.
  • Arranging the use of tables in the kitchen and cafeterias in respect of the social distancing rules, and if possible, to have one person or a maximum of two person sitting at one table.
  • Using masks in crowded places. 
Logistical limits regarding social distancing and the size of meetings
 
The social distancing rules require a distance of at least 1.5 meters in between people, which applies to all areas of life including the workplace. Thus meetings and trainings are suggested to be postponed or made through online platforms. If not possible the number of participants must be kept at a minimum while abiding by all of the social distancing and cleaning rules.
 
Testing requirements (e.g., taking people’s temperatures) or recommendations including employee monitoring
 
Employers are required:
  • To take the temperature of employees (with a contactless thermometer or through thermal cameras) before the start of work each day. If any of the employees having fever above 37.8 C, the employer should direct these employees to the workplace doctor and should not allow the employee’s entry to the workplace.
  • To notify the health authorities and other employees if an employee affected by COVID-19 is detected.
  • To put in place a separate isolation room in case an employee is diagnosed with COVID-19 and to start putting together a list of employees who may have been in contact with the affected personnel.
  • To keep workplace visitors at a minimum and abiding by the same rules above, and if possible, to hold meetings online.
  • To allow suppliers into the workplace by abiding by the same rules above stated above. 
Cleaning recommendations or requirements
 
Employers are required:
  • To use natural air conditioning and to clean the workplace with water and detergent on a daily basis. 
  • To clean places that are frequently touched such as door knobs, hand rails, elevators, buttons, phones, remotes, etc. and toilets twice each day with bleached water or chlorine tablets.
  • To put in place separate trash bins for single use handkerchiefs and biological waste, and to inform the cleaning personnel that deal with the waste to avoid contact with the contents.
  • To notify employees to wash their hand before the start of work and throughout the day and to use hand sanitizers if there is no access to water.
  • To maintain a sufficient amount of cleaning materials at and hand sanitizer in common areas.
  • To disinfect packages that arrive before allowing them inside.  
Compensation or remuneration issues
 
Reduction in Work Hours: Employers may apply to the labor authority to reduce work hours by 1/3 due to COVID‐19, or to partially or fully cease operations for a minimum of 4 weeks. Subject to approval, this reduction may be applied for up to 3 months. Employees working for the last 60 days who have paid 450 days of unemployment insurance premium within the last 3 years are eligible for this reduced hours working scheme.
 
Prohibition on Terminations: As of 17 April 2020, employers are prohibited from unilaterally terminating employees for a 3‐month period (unless termination is based on gross misconduct). Employers in breach of this obligation are obliged to pay an administrative fine equal to the gross minimum wage (i.e., TRY 2,943) for each terminated employee. During this period, employers can furlough their employees. Employees furloughed or laid off after 15 March 2020 who cannot benefit from state allowance for reduced work hours are eligible for state allowance in the amount of TRY 39.24 per day.
 
Other than the above, there are no rules or principles that require any changes to the compensation or remuneration rights of employees. 
 
Data collection and privacy
 
Health data cannot be processed without explicit consent from the data subject. The only exception is if the processing is done by a person or authorized public institution or organization that is subject to a confidentiality obligation (i.e., a workplace doctor) and if the data is processed for the purposes of protecting public health, medical diagnosis, treatment purposes among others. Therefore, it would be best for the workplace doctor or other healthcare personnel to carry out COVID-19 related measures such as health screenings, questionnaires, and symptom monitoring. If circumstances do not allow such practice and other persons must process the relevant health data, there is a risk of violating the applicable legislation. Hence, in such case, prior consent of the employees should be obtained. 

   

United Kingdom

Content provided by Dechert LLP

Contact:
Charles Wynn-Evans
Partner
+44 20 7184 7545
charles.wynn-evans@dechert.com

How do employers determine if they are ready to reopen (e.g., status of government shutdown orders)?

The current UK government guidance says that if people cannot work from home, they should go to work, provided that their workplace is permitted to open and not required to remain closed. Whether employees can be encouraged or required to return to work depends on whether the employee is able to work from home, whether the government guidance changes, and also on each employee’s particular circumstances.

Any new government guidance is expected to say that, even if the lockdown continues to be relaxed in some respects, employees who can work from home will be expected to continue to do so at least in the medium term. 

What steps should employers take before reopening (e.g., develop a plan, deep cleaning, potential structural/operational changes)?

Employers in the UK have a duty to take such reasonable steps as are necessary to ensure the health and safety of their workforce.  Employees also have a duty to take reasonable care of their own health and safety and that of their colleagues.  This includes co-operating with their employer to enable it to comply with its duties under health and safety legislation.

The UK government has published the first iteration of its guidance for reopening workplaces. There is separate (though similar) guidance for the following areas of work:

  • construction and other outdoor work.
  • factories, plants and warehouses.
  • home environments – for those visiting people’s homes.
  • labs and research facilities.
  • offices and contact centres.
  • restaurants offering takeaway or delivery.
  • shops and branches.
  • vehicles – this covers couriers, mobile workers, lorry drivers, on-site transit and work vehicles, field forces and similar.
Following the relevant government guidance will help employers to comply with their health and safety obligations towards their employees.
 
UK employers should carry out risk assessments (in consultation with workers or trade unions) and put in place practical measures to address identified risks.  The guidance to employers makes various practical recommendations, to be put in place before employees return to the workplace, including:
  • maintain 2 metres social distancing wherever possible - employers should re-design workspaces to maintain 2 metre distances between people by staggering start times, creating one way walk-throughs, opening more entrances and exits, or changing seating layouts in break rooms.
  • where people cannot be 2 metres apart, manage transmission risk - employers should look into putting barriers in shared spaces, creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, or ensuring colleagues are facing away from each other.
  • reinforcing cleaning processes - workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.
How should an employer handle the initial reopening (notice to employees, PPE availability, employee refusals to return to work, etc.)?
 
Whatever steps an employer proposes to take to comply with government guidance and ensure the health and safety of its staff, it should communicate those steps to its employees; provide employees with the opportunity to comment on those steps and express any concerns they have with those steps and/or about returning to the workplace generally; and attempt to address any concerns raised by employees. Employers should consider whether to seek employees’ agreement to, or acknowledgement of the measures put in place in the workplace, and communicate what the consequences will be if the employee fails to comply with such measures.
 
Even if the relevant government guidance is followed by employers, employees may be unable or unwilling to return to the workplace on the basis of concerns about their facing serious and imminent danger, particularly if their only means of travel to work is by public transport, which the UK government has advised against using if possible. Penalising an employee in such circumstances could leads to claims of detriment or automatically unfair dismissal – at least for so long as there remains a real risk of infection with coronavirus.
 
It is likely to make practical sense to have a phased return to work with some roles returning earlier than others. Some roles will be essential for the workplace to function. Initially an employer could ask for volunteers to return first. There is likely to be a significant number of employees who are keen to return to the workplace.
 
When a wider proportion of the workforce is expected to return, employers should identify and plan in relation to:
  • Employees who are defined as clinically “vulnerable” or “extremely vulnerable” (shielded) group, or who are living with people in those groups;
  • Employees who currently have been diagnosed with, or who have the symptoms of Covid-19, or are living with someone who has been diagnosed with, or who has the symptoms of Covid-19;
  • Employees who are living with someone who is in regular contact with those with Covid-19, such as an NHS or other key worker; and
  • Employees who cannot return to the office because they need to care for children or other dependents.
What are the key considerations in continuing operations (dealing with employee cases, leave administration, failure to follow social distancing requirements, etc.)?
 
Employers will need to consider a range of issues in continuing their operations, which will be dictated in some respects by the guidance from the UK government. However, there are some practical steps that should be considered early on, some of which are outlined below.
 
In relation to annual leave, employers might wish to plan for this now, as, if their employees are accruing and not taking leave, they might find that they receive many simultaneous holiday requests towards the end of the holiday year. Employers should consider their business needs, in terms of how many and which employees can be on holiday at the same time and whether existing policies are adequate to cover this, and what they will do about any requests to carry over annual leave, which might be permitted by amendments to the relevant legislation.
 
For those employees who continue to work from home in accordance with government guidance, employers should take steps to ensure that the required health and safety, display screen and desk risk assessments have been conducted. They should also ensure that those working from home take adequate breaks, and consider whether they need to provide additional training to those individuals.
 
Finally, employers should take steps to prepare for circumstances in which one of its employees becomes infected with coronavirus. They should ensure that they have up-to-date contact details and emergency contact information from employees, and take steps such as requiring the diarising of any interactions between staff members at close proximity and encouraging the use of contact tracing apps for all staff, such as the NHS app which is expected to launch soon. This will reduce the number of people who may need to be sent home..