Measures taken by employers regarding the individual employment agreement in the context of the state of emergency caused by COVID-19

In the state of emergency context caused by the new coronavirus, employees may find themselves in situations such as: their individual employment agreement ("IEA") has been suspended or they have been dismissed by the employer.

In principle, while the suspension of the IEA may be justified in the context of a state of emergency, the termination of employment relationship may raise questions as to the legality of the termination measure taken by the employer.

According to the Labour Code, the suspension and termination of the individual employment agreement may occur under the following conditions:

Suspension of the IEA

Cases and grounds:

1. suspension by virtue of law, amongst others, in the following cases:

• during quarantine

  According to Order of the Ministry of Health no. 313/26.02.2020 for the establishment of the quarantine measure of persons in the situation of international public health emergency caused by infection with COVID-19 and the establishment of measures to prevent and limit the effects of the epidemic, it is established the quarantine measure of persons entering the territory of Romania coming from the areas affected by COVID-19, either by quarantine in specially arranged spaces, or by self-isolation at home for a period of 14 days.

  At the same time, in case of an employee confirmed with COVID-19, the employer has the obligation to inform the Public Health Directorate in the area in which it carries out its activity.

  During quarantine, the employees shall no longer perform work and they will not collect the salary rights, but they will be entitled to a quarantine allowance. Release from quarantine after 14 days, respectively discharge from hospital, will be carried out after performing 2 negative tests for COVID-19 performed at a minimum interval of 24 hours, accompanied by the epidemiological endorsement issued by the county Public Health Directorate/ of Bucharest. Subsequently, the employees will be able to exit the quarantine leave, and the individual employment agreement will continue to produce its effects, the employees being able to resume their activity and to receive the salary rights.

  ! During quarantine the employers cannot decide the IEA termination.

• in case of force majeure

  Government Emergency Ordinance no. 29/2020 on some economic and fiscal-budgetary measures defines force majeure as the unpredictable, absolutely invincible and inevitable circumstance arising from an action of the authorities in applying the measures imposed by preventing and combating the pandemic caused by COVID-19 coronavirus infection, which affected the activity of the small and medium enterprise, damage which is attested by the emergency situation certificate.

  ! The measures taken by the authorities in accordance with the enactment which established the state of emergency shall not be unpredictable, so that they do not represent force majeure, for example, the traffic restrictions that determine the affectation of the employer's activity.

  In order to validly invoke the force majeure for the suspension of the IEA, certain main conditions should be met:

• unpredictability of the event – or, in the context in which the spread of COVID-19 was/ is notorious at public level, we consider that the unpredictable nature could not be upheld;

• the absolutely invincible nature of the event – in case telework/ work at home is possible, we consider that this condition cannot be upheld; thus, only the impossibility of performing the work may determine the suspension of the IEA.

During the force majeure state, the employee does not perform work and he/she is not entitled to receive the salary, and at the termination date of the force majeure event the IEA may be resumed.

! During the force majeure, the employers cannot decide to terminate the IEA.

2. suspension by the parties’ agreement::

If the employee and the employer decide by mutual agreement the suspension of the IEA, they may sign an addendum by which they will also mention the duration of the suspension. The resumption of the IEA will also be possible by the parties’ agreement, by the signing an addendum to the IEA in this respect.

! Important: both the employee's and the employer's consent must be freely expressed, otherwise the agreement may be annulled.

3. suspension at the employee’s or employer’s initiative - in the latter case, the employer may suspend the IEA in the event of temporary interruption or reduction of its activity, without termination of employment relationship, for economic, technological, structural or similar reasons.

According to art. XI of Government Emergency Ordinance no. 30/2020 for amending and supplementing certain enactments, as well as for establishing measures in the field of social protection in the context of the epidemiological situation determined by the spread of SARS-CoV-2 coronavirus, in the context of emergency, IEA suspension is regulated for temporary interruption or reduction of the activity, without termination of employment relationship, for economic, technological, structural or similar reasons - technical unemployment. Thus, the measures for the protection of employees provided by GEO no. 30/2020 can be applied only in this case of suspension of the IEA mentioned above, not in other cases of suspension (such as force majeure or quarantine). The mentioned protection measures consist in granting compensations in the amount of 75% of the basic salary corresponding to the job occupied and they are supported from the unemployment insurance budget, but not more than 75% of the average gross salary, i.e. LEI 4,071.

The compensations for the technical unemployment are supported, from the unemployment insurance budget, during the state of emergency.

However, during the reduction and/ or temporary interruption of the activity, the employees shall be at the disposal of the employer, who will always have the possibility to decide the activity resumption.

IEA termination at the employer’s initiative

Grounds for employees’ dismissal:

• reasons related to the person of the employee (for example, for committing a disciplinary offense, in case the employee is arrested on remand, medically proven work incapacity or in case of professional inadequacy);

• reasons not related to the person of the employee (job position cancellation - which must be effective and have a real and serious cause).

The procedure of individual or collective dismissal is strictly regulated by the Labour Code, and the dismissal ordered by non-observance of the procedure provided by law is deemed null and void.

Last but not least, employees should pay more attention to the measures taken by employers in the current economic context, as, even in a situation of emergency, employees continue to be protected by the relevant legal provisions.

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