What responsibilities does an employer have when there is an epidemic? Can the employer restrict and record their employees' travel? Can a company unilaterally require its staff to work from home? Can an employer reduce their employees' work or work-related travel? In which cases can and should employees be exempt from working? Dr Ákos Fehérváry, Partner and head of the employment practice at Baker McKenzie Budapest and Dr Nóra Óvary-Papp, lead employment lawyer, cover the most important issues below.
The coronavirus situation is developing day by day as more and more countries report cases of new infections. The virus has now appeared in Hungary too, making the issue of increasing relevance to employers here. It's now vital that employers are prepared in order to avoid possible infection as much as possible and respond appropriately to confirmed or suspected cases of infection.
Given that Hungarian labour law does not contain specific provisions on what the employer can and should do in the event of an epidemic, each individual situation will be governed by same labour laws that would otherwise apply in the normal course of business. The experts recommend developing a so-called pandemic or contingency plan, which should define pre-emptive steps to minimise risk, steps to be taken in the event of an epidemic, and responsibilities and decision-making competencies, as well as ensure an adequate internal communication channel for employees and requisite remote work capabilities. If necessary, the business should consider whether the business continuity measures are in place for resource or workforce shortages.
One of the most important responsibilities of employers is to maintain a safe and healthy working environment. While companies cannot fully protect their employees and the business from the virus, they can take steps to mitigate risk. For example, the employer can ensure employees are fully informed, disinfectant products are available and their use encouraged, visitors entering the premises are registered, as well as ensuring that business trips and meetings are reviewed and, where necessary, postponed. These measures all present employment law and data protection issues which must be carefully considered.
One sensitive issue is whether employees may be required to tell their employer if they are infected or, even more controversial, if they notice their colleagues exhibiting suspicious symptoms. Given that an employee must not risk their colleagues' health or the operation of the business, the employer presumably can and should impose such requirements.
The employer may exempt the employee from the obligation to work due to the threat of a pandemic, but must pay a basic salary for the duration of the exemption. The employer may also temporarily require employees to work from home where the position allows and where the work can be technically be performed from home. Pursuant to the Labour Code, the employer may unilaterally order work at another place of work. In addition, the employer may also send their employees on paid leave, subject to the rules on leave, although in some cases the pre-notification requirements may not be met.
It is much more arguable whether an employee can refuse to work or insist on working remotely due to the threat of a pandemic, for example if they feel at increased risk in the workplace, or if they have contact with a lot of people during the course of their work. In the absence of a specific risk to the employee, the employer is not required to agree - but it may be hard to determine was constitutes a specific risk.
If the employee is exempted from work at their request, the parties may agree on paid or unpaid leave. If an employee unlawfully refuses to work on the basis of an epidemic, this may give rise to the termination of their employment. In the case of a rapidly evolving epidemic, it may be unclear when it is unlawful for an employee to refuse work and whether the employer has sanctions for use at its disposal.
If there is a case of confirmed or suspected infection in the workplace, the employer may require their employees not to come into work. Whether the company is then is required to partially or full close their offices, or what further steps they should take, is less clear. If the employer is unable to fulfil their employment obligations due to an unavoidable external cause, they are exempt from the obligation to pay wages. It may be questionable whether the cause was in fact unavoidable, which is why it is particularly important that an employer puts adequate risk mitigation measures in place.
There are a few specific examples worth considering. Is an employee exempt from work, or is the employer required to exempt them from work and continue their pay, if they can't come to work because their child's school was shut due to the epidemic? What happens is an employee's relative is sick? What if an employee has travelled abroad to a high risk area for business or personal reasons? Can the employer impose travel restrictions and record employee travel, particularly in the case of personal travel? Labour law offers a number of solutions to these situations. In order to handle each situation optimally, all the circumstances must be carefully considered, including the individual situation of the employees (job, age, vulnerable groups, family or single worker, etc.) as well as the various legal obligations related to employment law and data protection.
In case of a diagnosed illness or taking care of a minor, sick leave and sick pay may be available to the employee. Equally, if an employee is officially quarantined, which may be ordered by the Chief Medical Officer if there is a risk of infection, they will be entitled to sick pay, but not if quarantine is ordered by the employer or voluntary. Where infection is suspected rather than confirmed, the employee is not entitled to sick leave or sick pay.