Coronavirus and quarantine – labour law challenges
As the coronavirus and quarantines are spreading in Europe more and more employers and employees ask the question: how can we minimize the risk of infection by the instruments of the labour law? To answer this question, we have to examine other branches of law as the labour law does not contain specific provisions on epidemiological quarantines.
1. What can a company do before the quarantine is announced? (preliminary measures besides using hand sanitizer)
Employers have the possibility to order their employees to telework (for example to work in home office) for a certain period, on their own discretion, if the necessary conditions are met. Of course, if such measure incurs costs for the employees then those shall reimbursed by the employer. This can be deemed a responsible behaviour if working in home office is otherwise a part of the general practice. Furthermore, the employers have the right to order the employees to take their holidays, however, the general rule (that is the holidays shall be allocated to contain at least fourteen consecutive days once in a calendar Year) shall apply. Employers should pay attention to the obligation that the employees shall be notified of the scheduled date of their holiday not later than fifteen days before the first day of the holiday which means scheduling of the holidays requires careful consideration. Because of that it is advisable to follow the latest information regarding the coronavirus either at koronavirus.gov.hu or egeszseg.hu, which are the websites maintained by National Center for Public Health.
It is also an option for the employers to exempt the employees from work, and in this case the employers shall pay only the base salary. In this case the employers do not have to be informed previously. Consequently, this can be a real option for the employers if the danger of the epidemic is immediate, but no quarantine has been announced yet.
2. During quarantine
The quarantine can be ordered and announced by the health administration. The quarantine can be executed immediately.
Remaining in quarantine – as an employee
During the quarantine employees who are not sick shall be available and perform work provided that the employer has organized the work (even as telework) or if their residence and the place of work is at the same municipality and the authority has not ordered inter-city traffic restrictions (for example curfew).
However, if the employee is placed in quarantine (for example upon of his place of residence), while the place of work is outside the quarantine and therefore the employer continues its operation, then the employee, beyond his own fault, fails to perform its obligation to work. In such case the employee shall not be entitled to his salary because of the epidemic as being placed in quarantine shall not be deemed as paid absence.
However, employees who are in the social security system shall be entitled to cash benefits during the period of the quarantine as employees who cannot appear for work because of the quarantine and cannot be temporarily employed at another work place (or in another position) shall be deemed as incapable for work and therefore such employees shall be entitled to sick pay. Such employees shall not be entitled to sick leave, they shall be entitled sick pay from the first date of the leave.
Quarantine – for employers
Do employers have obligation to employ employees during the quarantine?
Do they have obligation to pay salary?
If the place of work is in the quarantine it is possible that the employer cannot perform its obligation to employ the employees for example because the employees cannot access the place of workplace or because the raw material is out of stock so the company can no longer produce. In such case the employer shall pay base salary for the downtime.
If the employer runs out of the raw material during the quarantine and cannot procure it, then it can be deemed as an external circumstance beyond the scope of the employer’s operation on which the employer has no influence and therefore it can be deemed as an inevitable external cause. In this regard if an employer cannot employ the employees because of an inevitable external cause, then the employer has no obligation to pay the base salary.
3. Is quarantine a force majeure (unavoidable external cause)?
In this regard there are conflicting opinions on the internet. Insurance companies deem the quarantine as an unavoidable external cause and therefore they refuse to pay while hotels do not and therefore they refuse to cancel bookings. Of course this question is much more complicated and therefore depends on a lot of conditions such as the contractual circumstances, and obligations of the parties what kind of activity are they engaged in and what can be deemed as disproportionate obligation for the other party.