Author: Dennitsa Marincheva, coordinator ‘Legal Aid Network’, National Network for Children
The pandemic crisis, we are currently in a state of, raises both mental health and purely economic and legal issues. In relation to the introduced state of emergency, which was declared by a decision of the National Assembly on March 13, 2020 in Bulgaria, the Act on Actions during State of Emergency, published in the State Gazette, issue: 28, dated 24.3.2020, was adopted.
The aforementioned law contains provisions introducing amendments to the Labour Code, including through its Transitional and Final Provisions. In this regard, the аmendments concerning labour law are presented, as they are particularly important to citizens in the wake of a serious increase in unemployment, which has been reported by the Ministry of Labour and Social Policy (MLSP).
With regard to the provisions under consideration, the law enters into force on 13 March 2020 and applies until the state of emergency is lifted.
1. On issues related to the annual paid leave
The newly adopted law contains permits that allow the employer to provide their employee(s) with up to half of their paid annual leave without (their) consent (by virtue of Article 7, paragraph 2 of the the Act on Actions during State of Emergency). This is an entirely new approach to the use of the right of paid leave and is contrary to Art. 173, para. (1) of the Labor Code, which stipulates that the annual paid leave shall be used by the employee with the written permission of the employer., i.e. after the employee’s request.
Such an idea is at the core of the provision of Art. 173, para. 4 of the Labor Code, according to whichthe employer shall be entitled to grant the annual paid leave to the worker or employee, even without their consent, in case of more than 5 days of idle time, during the using of leave by all workers and employees simultaneously, as well as in case the worker or employee, upon invitation of the employer, has not requested his leave by the end of the calendar year for which it is due.
We note, however, that there is a favorable change for the employees in relation to the text of the initial draft bill, adopted at first reading, which provided that the employer would be entitled to grant the employee their whole paid annual leave without their consent, as well as to provide unpaid leave if the employee has used their entire paid leave. It’s important to note that a permit regarding the employee’s unpaid leave is not contained in the newly adopted law.
The newly adopted law contains permits that allow the employer to provide the employee with their paid annual leave without the employee’s consent, including if they have not obtained 8 months of work experience, but only in cases where, because of a declared state of emergency by order of the employer or an order of a state body the work of the entity is suspended, part of the entity or individual employees’ work is suspended (regulated in § 4, item 4 of the Transitional and Final Provisions of the Act on Actions during State of Emergency, which creates Article 178a, paragraph 1 of the Labor Code). The regulation of the possibility to take leave for persons with unacquired 8-months work experience is new and more favorable for the employees, since according to Art. 155 para. 2 of the Labor Code, the worker or employee who takes up office for the first time may use their paid annual leave after at least 8 months of work.
The employer is obliged to allow the use of paid annual leave or unpaid leave in the event of a state of emergency when requested, if the employee is: pregnant or undergoing in-vitro treatment; mother or adoptive parent of a child up to 12 years of age or a disabled child, regardless of age; worker or employee who is a single father or adoptive parent of a child up to 12 years of age or a disabled child, regardless of age; a worker or employee who is under the age of 18; employee with permanent disability of 50 and more than 50 percent; worker or employee with the right to protection upon dismissal under Art. 333, para. 1, items 2 and 3 of the Labor Code.
The Act stipulates that time spent on leave is recognized as length of service (as, inter alia, by virtue of the Labor Code in Article 352, paragraph 1, item 2, and in principle all paid Paid leave used, regardless of the grounds and mode of payment are recognized as lengths of service). 2. On matters related to performing work-related duties, the employer may:
2. On issues related to fulfilment of work obligations
The employer has the power to issue an order which compels the employee to carry out ’work from home’ and telework during a state of emergency, without the latter’s consent. In this case only the place of workis changed, without alteringthe other conditions of the employment contract. This new regulation is contained in § 4, item 1, which creates Art. 120b of the Labour Code.
“Work from home” means the fulfilment of work obligations in connection with the production of products and / or the provision of services in the home of the employee or in other premises of his choice outside the workplace of the employer (in accordance with Article 107b of the Labor Code).
“Teleworking” is a form of organizing work outsourced to an employer, carried out by employment through the use of information technology, which, before being exported, was or could be carried out at the premises of the employer (according to Article 107h of Labor Code).
Clearly, the idea behind these new provisions is for employees to work from home in order to meet the requirements for social distance, as well as to ensure healthy and safe working conditions.
The employer has the authority to issue an order with which they reduce the working hours and introduce part-time work at the company or its unit for the entire period of the declared emergency or for part of that period ( for those working full-time). The consequence of this would be that the wages or salaries will also be reduced and employees will receive an amount proportionate to the amount of their full payment for full time. (§ 4, item 3 of the the Act on Actions during State of Emergency, which creates Article 138a, Paragraph 2, Labour Code)
Be reminded that by virtue of Art. 138a, para. 3 Labour Code (numbering according to the change) the employer is not allowed to reduce the duration of the workday to less than half of the legally established for the period of calculation of the working time. This means that if the calculation of working time is daily, at 8 hours a day for a 5-day work week, it may not be less than 4 hours a day.
3. Amendments in overtime labor regulations
If the person in question isa part-time worker or employee providing or assisting in the provision of medical assistance, or a public servant who, by job description or order of a manager, supports the provision of medical assistance, then the restrictions on overtime and its duration do not apply. .
If the person in question is a member of the police authority and the body for fire safety and protection of the population, they must sign an explicit written consent in order to work overtime under the restrictions of art. 187, para. 7 of the Ministry of Interior Act. Failure to do so does not warrant disciplinary action for the emloyee.
In accordance with Art. Labor Code the duration of overtime work in one calendar year for one worker or employee may not exceed 150 hours, as well as 30 hours day or 20 hours night work in 1 calendar month; 6 hours daily or 4 hours night work in 1 calendar week; 3 hours daily or 2 hours night work in 2 consecutive working days.
4. In regard to the termination or suspension of the enterprise
In the event of a national state of emergency, the employer may, by order, suspend the work of the enterprise, be it completely or partially, or individual employees for the whole duration of the state of emergency, or part of it, until itis lifted.
It is important to note that for the duration of the termination/suspension of employment the employee is entitled to their gross remuneration.
The employer is obliged not to allow the employees to their workplace for the period specified in the order.
5.On issues related to the payment of funds from the Unemployment Fund to your employer
During the validity of the State Emergency Act, but for a period of up to three months, the National Social Security Institute transfers 60 percent of the amount of the social security income for January 2020 to employers who meet the criteria determined by an act of the Council of Ministers. This act despite not yet been adopted, is expected to apply to employers who have terminated the work of their entityon the basis of an act issued by a state body only.
The funds will be at the expense of the Unemployment Fund of the State Social Security, and in the case that the employer does not pay the full amount of the salary to the employee, the employer will have to reimburse it to the State.