The duty to protect employees’ health and lives
How must employers respond to threats to employees’ health and lives? Article 209(2) of the Labour Code requires immediate information about risks and protective action. Employers must also provide appropriate instructions. If danger to health or life is immediate, work must stop and employees must be instructed to move to safety.
Employers are now commonly providing workplaces and staff with disinfectants. Staff are sent to work remotely where their duties permit. Non-essential business travel may also be suspended. Under current law, where danger to health or life is immediate, employers must allow employees to take action to avoid it, within their knowledge and available technical means, even without further instructions from superiors.
Employees’ duties must also be remembered. They must comply with occupational health and safety rules, notify a supervisor immediately of any danger to life or health noticed at work, and warn colleagues and others in the affected area. If an employee notices a risk of SARS-CoV-2 spreading at work, for example through information about a possible infection affecting themselves or another employee, or observing COVID-19 symptoms in others, they are legally obliged to notify management.
‘Article 209(2) of the Labour Code requires employees to be informed immediately of risks and action to be taken to protect them.’
The employer’s right to decide unilaterally on remote work
Previously, remote work required agreement between the employer and employee. Where workplace trade unions operated, agreement with them was required. Under the previous rules, employers therefore could not direct an employee to work remotely without consent.
The recently adopted COVID-19 Response Act changes this. To counter COVID-19, employers may instruct employees to perform their contractual work away from their usual workplace for a specified period. The decision now rests exclusively with the employer.
When directing remote work, detailed rules on performance, reporting and employer supervision are recommended to minimise the risk of misconduct by employees.
‘For the next six months, the decision on remote work will rest exclusively with the employer.’
Checking employees where sick leave may be unjustified
Given current public concern about the threat to employees and their loved ones from the spreading SARS-CoV-2 epidemic, large numbers of employees may submit medical certificates requiring them to stay at home.
This may particularly affect employees whose work cannot be performed remotely. Both ZUS and employers may investigate where sick leave is suspected to be unjustified. Abuse may lead to disciplinary penalties or even disciplinary dismissal.
Using annual leave to prevent COVID-19 infection
Employees may use their statutory annual leave during a period of heightened epidemic risk. However, an employer may refuse the requested dates to ensure normal work and business operations.
This is particularly relevant if disease-related absences become widespread. They reduce workplace efficiency and may even cause business standstills.
The employee’s right to stop work
Article 210 of the Labour Code specifies when employees may stop work: where working conditions breach occupational health and safety rules and pose an immediate threat to the employee’s life or health, or where performing the work presents such a threat to others.
If stopping work does not remove the danger, employees may leave the danger area. In either case, their only duty is to notify a supervisor immediately of the circumstances and action taken. The provisions expressly prohibit any adverse consequences for the employee. They also retain their pay entitlement despite stopping work.
Whether there is an immediate threat to life or health must be assessed in each workplace’s circumstances, particularly the employer’s steps to reduce COVID-19 infection risk, recommendations given, procedures implemented and the nature of the work.
We also write about other challenges posed by COVID-19:
