TELEWORK OR REMOTE WORK … ?

Telework or remote work, which may also include working from home, is one of the main options for companies when it comes to the measures to be taken for stopping the spread of the coronavirus (COVID-19) and at the same time keep on working in the context of the pandemic and declaration of the Emergency state in Romania.

The legal framework is represented by the Law no 81/2018, the Labour Code (art. 108 – 110) and the Law no 319/2016.

While telework is working by means of information technology and telecommunication, working from home may be the solution in other cases without using such means to the extent that the employee can perform his/ her job from home.

Both cases are governed by the Law no. 319/2006 with respect to ensuring safety and health of the employees.

Telework

Telework is a form of organizing work, where work, which could also be performed at the employer’s premises, is carried out away from those premises by an employee using information technology (totally or in part), either at the employee’s domicile or in a third party’s premises.

The Law no 81/2018 governing this type of work requires that the employee’s agreement in this respect is be given by signature of an Addendum to the employment agreement as well as the obligation for the employer to include certain mandatory clauses.

Nevertheless, EXCEPTIONALLY, the art. 33 of the Decree no 195/19.03.2020 of the President of Romania whereby the Emergency state is declared, states that the conclusion of and addendum to the employment agreement is not necessary if the employer decides to use telework in order to ensure the safety and the protection of the health of the employees.

At the same time, employers should keep in mind that pursuant to the art. 48 of the Labour Code they are entitled to temporarily modify the work place of the employees without their agreement upon being necessary.

In both cases, the employer shall issue a unilateral statement in which he shall refer either to the Decree whereby the Emergency state is declared or to the concerned article of the Labour Code.

The usual mandatory clauses to be included in the in the addendum to the employment agreement are:

a) Express mention of the fact that the employee works under telework regime ;
b) The term and / or the days during which the employee performs his/her activities outside the employer’s premises;
c) The place(s) agreed upon by the parties for such performance of telework;
d) The hours during which the employer is entitled to check the activity of the teleworker and the actual inspection means;
e) The manner in which the records of the telework hours performed by the employee are kept;
f) The parties’ responsibilities agreed upon according to the work place(s) for teleworking, the responsibilities with respect to health and safety included ;
g) The obligation of the employer to ensure the transport from and to the telework place, the necessary equipment the employee may be using;
h) The obligation of the employer to inform the teleworker on the legal provisions, the collective agreement applicable and / or the internal regulations on the protection of the personal data as well as on the obligation of the teleworker to observe them;
i) The measures taken by the employer for avoiding isolating the teleworker from the other employees and that are to be shaped to ensure the teleworker’s regularly meeting the colleagues ;
j) The conditions in which the employer takes in charge the expenses pertaining to the performance of the activities under telework regime.

It shall also be noted that, normally, the execution of an agreement / addendum to the employment agreement on telework without provision of the clauses hereinabove shall be deemed a contravention and give rise to a fine amounting to LEI 10.000 per person (around EUR 2.200) for inobservance of letter a) respectively to LEI 5.000 (around EUR 1.100) for inobservance of provisions under letters b) – j).

The challenges of telework for the employer

If we all surely agree that telework is beneficial for both employers and employees in terms of costs, productivity or time management, the challenges are not be neglected.

On the one hand, communication may be more difficult for the employee (especially in terms to fitting in the team), but also for the employer who is bound to inform and protect the teleworker, especially with respect to health and security matters.

This is mainly why employers are reluctant to use telework under normal working conditions.

Another challenge for the employer is also to ensure the conditions for the teleworker to receive sufficient training by providing information and instructions appropriate for the work place. It must also be noted that the teleworker is, in his turn, bound to inform the employer with respect to the equipment used and the working conditions.

Even if there is no addendum to the employment agreement, the employer must undertake measures to ensure the health and the safety of the personnel. The employer must also provide the employees with the necessary equipment for remote work.

Finally, a third challenge related to telework would be the working hours of the teleworker and most of all the overtime he may be doing. The employer must record the daily overtime of an employee by stating the start and finish working hours. Furthermore, in theory the employer must keep track of the hours under telework.

As far as the overtime done by the teleworker is concerned, the law requires that prior agreement upon is to be given by the employee. Failure to comply with such provision is deemed as contravention giving rise to a fine amounting to LEI 5.000 (around EUR 1.000).

As far as the obligations hereinabove mentioned are concerned it may be useful to keep in mind that during the Emergency state the inspections performed by the competent authority (namely the Work Inspection) have been suspended!

Nevertheless, may we remind you that attention should be paid to both the employee’s rights (for example the overtime, the maximum weekly working hours) and the employer’s obligations especially in relation to data protection and ensuring a safe and reliable internet connection.

Work from home

This work form is governed by the articles 108-110 of the Labour Code and it concerns the performance of an activity by the employee from outside the employer’s premises but without being conditional upon the use of information and communication technology.

In this case also, the employment agreement must provide for mandatory clauses with respect to the place from where the employee is to perform his activity as well as the time lapse when the employer can check upon the activity of the employee.

Temporary modification of the work place – safety measure

Temporary modification by the employer of the work place of his employees is also possible pursuant to the article 48 of the Labour Code. In these conditions, the employer must issue a unilateral decision stating for the period, the reasons entailing it and the employees considered. Such decision shall be communicated to the concerned employees who must comply with.

Finally, considering the present context of the pandemic outbreak of Coronavirus (COVID-19) and facing the economic difficulties or the reduction / temporary disruption of the activity, companies may uses a series of instruments allowing the reorganization of their activity, such as :

• Technological unemployment (art. 53 of the Labour Code): the employees concerned by such a measure are entitled to an indemnity amounting to 75% of the base gross salary (at present paid up by the employer ….). During the cessation of the activity, the employees are at the employer’s disposal who can decide at any moment to have them back to work;


• Granting paid holidays or free hours paid up to the employees (pursuant to art 122 (3) from the Labour Code) in setting off with the overtime to be done during the following 12 months. Even if the Labour Code makes no particular mention on the implementation thereof, such measure shall result in a written decision signed by the management of the company whereby the employer decides that free paid up days shall be granted to the employees (drop of the orders, for example) in the context of the pandemic;


• Temporary decrease of the working time: the employer may decide to reduce the working time from 5 to 4 days for a term not exceeding 30 days, by adjusting the salary accordingly;


• Suspension of the employment agreement pursuant to the provisions of the art. 50 letter f) of the Labour Code (force majeure) and of the Emergency Ordinance no. 158/2015 on leave and health insurance contributions ;


• Mass or individual layoff procedure pursuant to the provisions of the art. 65 and the following from the Labour Code.