The Hungarian Government has issued several decrees in relation to the measures to be taken during the COVID19 epidemic. As of 16 March 2020, parents of school-age children are obliged to arrange homecare for their school-aged children, as well as increasingly for their children in kindergarten and daycare, for an undetermined period of time.
These measures are likely to put significant strain on employees who are parents and may be unable to go to their workplaces or find it difficult to work from home.. Below we summarize relevant employment law provisions which the parties should take into account in dealing with this extraordinary situation.
1. Common rules of conduct – Intensified duty to cooperate and act in good faith
Both the employer and the employee have an intensified duty to cooperate and act in a manner consistent with the principle of good faith and fair dealing. The employer must take into account the personal circumstances of the employee if it considers implementing extraordinary measures, and both parties are required to consider one another's interests in their dealings with each other.
2. Exemption from work
Employees may be exempt from the requirement of availability and work duty if justified by personal, family circumstances worthy of special consideration or unavoidable external reasons. Although the Labor Code does not specify an exhaustive definition for these circumstances, the fact that employees are obliged to arrange the homecare for their children is considered to be such a situation (especially because official recommendations are that children should not be in the care of grandparents). In this case, employees can legally stay away from work, but according to the current legislation they are not entitled to remuneration. Having regard to the extraordinary situation, however, several companies might exempt employees who have children from work, and if possible based on the economic situation of the company, continue to pay wages.
3. What are the alternative possibilities for the parents unable to work due to the closure of childcare facilities?
3.1. Paid leave
The employer is entitled to allocate all but seven days' of an employee's annual leave. Therefore, an employee may request paid annual leave if they have sufficient leave remaining. In principle, both parties shall notify the other of the scheduled date of their vacation time no later than fifteen days before the first day of vacation, however, in the present situation these rules should be applied with flexibility by both parties. If the employee takes leave without informing the employer 15-days prior due to unexpected closure of schools and childcare facilities, the employer should, if possible, allow the paid leave in accordance with duty of cooperation and good faith, provided that it does not interfere the operation of the company. It may be arguable how realistic this is for an employer and whether they are in a position to allow multiple employee requests. By the same token, employees must accept being sent on paid annual leave even where their employer does not meet the 15 day notice period. In this case, the employee may find themselves in a better position than in case of an exemption from work because they will be remunerated for the duration of paid leave.
3.2. Unpaid leave
Parties may agree on the allocation of unpaid leave where, evidently, the employee is not entitled to remuneration. The parties must agree the commencement date and the duration of unpaid leave. From the employee’s perspective, it is not an ideal solution because of the wage loss, but they can fulfill their tasks at home and are not obliged to work.
4. Exemption from work with the consent of the employer
In this case, the employee is entitled to such remuneration as agreed between the parties, which may be a fair solution in the present situation.
5. Other possible solutions
The employer can order employees to work from home if technically possible given the nature of the work. Essentially this also requires agreement between the parties, but it is likely that employees will be open such a solution as they can stay at home and still receive their wages. Employers can also unilaterally reassign their employees' place or scope of work for a period not exceeding 44 working days, or for a longer period with the employees' agreement. If the employer chooses this option, it must provide the employee with the necessary work equipment.
If a company's employees regularly work remotely, they may do so in the present situations too based on existing internal policies or, if necessary, the employer may introduce new internal remote work policies.
Where possible, the parties may agree on part-time employment, in which case of course the employee’s remuneration shall be modified accordingly.
On-call and stand-by duty: there are specific labour law provisions whereby employees might be required to be available on call, but only where specific requirements are met.
Re-organization of work-schedule: in the present situation, employers should increase efforts to ensure that employees are rostered according to their personal circumstances as far as possible, for example to roster employees without children or employees who can arrange childcare. Those employees who prevented from working due to circumstances outside their control may be able to make up the hours when the situation stabilizes. Provisions applicable to the organization of work schedule (for example scheduling daily breaks) must still be taken into account.
These alternatives are mostly subject to the parties’ agreement and must be dealt with on a case-by-case basis while also maintaining equal treatment for employees. Employees in similar situations should be given the same opportunities as far as possible.
In all cases, the employer's primary obligation is to provide and maintain safe and healthy work conditions. Regardless of how the parties look to resolve the current challenges, we advise employers to always prioritize this obligation.