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Romania: Teleworking during the state of alert

Employees’ consent – a sine qua non condition for implementing teleworking and working from home during the state of alert. But is an additional act necessary for this?

This article offers a brief analysis of measures for preventing and combating the effects of the COVID-19 pandemic under article 17, Law no. 55/2020.

Article 17 of Law no. 55/2020 allows employers, during the state of alert, to decide, with employees` consent, that activities are to be carried out as teleworking or as working from home, that the place of work is to be modified, or that duties may be changed.

Considering the wording of article 17 of Law no. 55/2020, one might affirm that by using the phrase “employees’ consent” the legislator`s intent is to implement teleworking and working from home through a simplified form of employee consent, without necessarily signing an annex to each individual employment agreement.

This interpretation might also be supported by the fact that implementing teleworking and working from home by an annex was already established by existing laws at the time of adopting Law 55/2020, through Law no. 81/2018 on teleworking (“Law no. 81/2018”) and Law no. 53/2003 – the Labour Code, with later amendments and additions, the republished version (“Labour Code”) insomuch that if Law no. 55/2020 had not brought under regulation a derogatory measure from existing laws, current regulations would not have been justified. In other words, if there were no different regulated implementing procedure for teleworking or working from home, at least from the standpoint of obtaining employees’ consent, duplicating the existing rules, as noted above, would not make sense.

Nevertheless, the following clarifications are required:

The initial draft regulation included an option for employers to decide to implement teleworking or working from home unilaterally, or by unilateral decision -making.

As to this manner of unilaterally implementing teleworking by employers, the Romanian Legislative Council (Consiliul Legislativ), when asked to endorse the draft, advised that the article regulating teleworking and working from home should contain a precise derogation from the applicable legal provisions that require employees’ consent, particularly from Law no. 81/2018 on teleworking and the Labour Code on working from home. At the same time, the Romanian Legislative Council pointed out that no one should be obliged against their will to work from home or do teleworking, “but this place of work must be precisely agreed on by the parties and stipulated by contract or additional act.”

Despite the Legislative Council’s notice, the enacted and promulgated form of Law no. 55/2020 does not contain any precise derogation from Law no. 81/2020 or the Labour Code, nor does it institute employees’ acceptance expressed by an additional ac (annex). Therefore, Law no. 55/2020 contains rather poor wording by use of the phrase “employees’ consent”.

In that context, considering the Legislative Council’s notice and the lack of precise derogation from the applicable legal provisions, particularly from Law no. 81/2018 and the Labour Code, one might suggest that, by using the phrase “employee’s consent”, the legislator had no intention of prescribing a simplified procedure for implementing teleworking, but the aim was to encourage employers to implement teleworking and working from home during the state of alert.

The current form of Law no. 55/2020, as enacted and promulgated, leads us to the following premises: (i) there is no precise legal requirement to sign an annex for teleworking or working from home; (ii) the approval of employees is not required, but only their consent is stipulated; (iii) if the consent of a party by additional act (annex) had been imposed, it should have been precisely stipulated. Therefore, we consider that, at least in the case of litigation, employers do have arguments to support the absence of the need for an employee’s approval by additional act (annex). This is because that most employing companies had already implemented teleworking or working from home during the state of emergency. Therefore, they are currently only continuing these measures. The consequence is the need for a simplified procedure for obtaining employees’ consent by any means or in any form, outranking the formalist procedure of drafting, editing and signing an annex by each and every employee.

However, it is beyond any doubt that teleworking, as well as working from home, may not be unilaterally decided by employers during the state of alert, in contrast to the position during the state of emergency. In other words, employers may not unilaterally decide to institute teleworking, as well as working from home.

bnt Gilescu, Văleanu & Partenerii Team

 

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