As of 15 May 2020, Romania is in PHASE 2 (state of alert) – meaning that, unlike PHASE 1 (state of emergency), some restrictions have been lifted, others maintained, and regulatory updates are expected every two weeks. Our input is based on the regulations/bills/guidelines as available as of 25 of May 2020 and considering the everchanging, dynamic and unclear legislative environment relevant for PHASE 2.
1. What options do employers have and/or what are you seeing in terms of re-opening the workplace e.g. phased returns, rotating shifts, staggered working hours, etc.?
During the state of alert, employers need to consider implementing (at least gradual) return to work plans. However, although the new regulations are still unclear and debatable and additional recommendations or guidelines are expected, employers can take certain steps.
- Employers can continue with remote working for employees, but arguably only with the employees’ consent (via an addendum to the individual employment agreement). Nevertheless, unilaterally imposing remote working could be considered by employers in exceptional cases for a temporary duration (for example, as a protective employee protective measure – however, this should be considered on a case-by-case basis, considering the potential risks for the company).
- Employers with more than 50 employees must unilaterally implement a working schedule to ensure a different start and end time between employees. The employer must split the employees into three groups of at least 20% of the staff and decide the start date for each group so that there is at least one hour between the start date of each group, mainly to:
- avoid peak hour congestion on public transport;
- avoid congestion at the entrance/ exit of the premises; and
- limit the number of employees present at the same time on the premises.
- Employers with fewer than 50 employees may also consider implementing such measures.
Health and safety related obligations (mainly in terms of temperature checks, social distancing, wearing masks) must be also considered when planning a return to work.
Certain business remain closed during the state of alert, such as fitness centres, playgrounds, game rooms, and spa treatment activities in enclosed spaces). Additional regulations regarding these businesses are expected.
However, several active measures for supporting employers have been recently introduced – both for employers whose activity is no longer restricted and those whose activity remains restricted until their lifting. This active measures apply for:
- employers who implemented technical unemployment during the state of emergency or the state of alert and are now resuming activity;
- employers hiring certain categories of individuals (individuals over 50 and formally registered as unemployed with the unemployment work force agency; or aged between 16 and 29 and formally registered as unemployed with the unemployment work force agency); and
- employers still implementing technical unemployment because their activity remains restricted.
There are eligibility criteria for each measure and a specific procedure to be followed.
2. Does an employer have to give notice to employees to return to the workplace?
Arguably no, but this should be analysed on a case-by-case basis, taking into account the employer’s approach to such matters.
In the case of temporary workplace closure (so-called technical unemployment/furlough), employees must automatically resume work on expiry of the technical unemployment – unless the employer decides to resume the activity earlier, in which case notifying the employees becomes necessary.
In the case of remote working, the remote-working arrangement must expressly include the exact remote-working period. As such, no prior notice should be necessary, assuming that the return to work occurs on the expiry of the remote-working period as agreed or imposed by the employer.
3. Is an employer obliged to consult with employees/representatives about the return to work process?
There is no express legal obligation. However, before implementing any return-to-work measures (ideally in a return-to-work policy), it would be prudent to consider consultation with employees’ representatives (for example, where implementing the return-to-work measures via an amendment to the internal regulation).
The employer could even, for full transparency and to raise awareness, conduct a consultation with the whole workforce.
Health and safety input should also be obtained.
4. Are there any requirements or recommendations for employees to wear or employers to provide masks or other protective equipment in the workplace?
During the state of alert, wearing masks in enclosed spaces, shopping centres, on public transportation and at the workplace became mandatory.
The company’s occupational physician will establish the conditions under which employees must wear masks, based on a risk assessment for the employees. Depending on the risk assessment, some exceptions may become applicable, for example:
- if the person is alone in the office,
- if the person suffers from a respiratory disease; or
- if the person performs intense physical activities or works in demanding conditions (e.g. high temperatures, high humidity).
The employer provide employees with guidance on the wearing of masks in the workplace, based on the risk assessment. This guidance must take account of factors including the work schedule, the nature of the work, the business’s organisational structure, and the nature of the premises.
There are also some guidelines on the correct use of masks:
- To be effective, masks should be used in combination with frequent cleaning of hands with alcohol-based solutions or soap and water.
- Before applying masks, hands should be sanitised (with alcohol-based solution or soap and water). Masks should cover both the mouth and the nose.
- Masks should be changed every four hours and whenever the mask has become wet or damaged.
- Masks should not be touched while they are being worn. If the mask is touched, hands must be sanitised (with alcohol-based solution or with soap and water).
- After use, masks should be immediately discarded in a rubbish bin, preferably with a lid, then hands should be washed.
- Reusing medical masks is not recommended.
- In case of fever, cough and sneezing, wearing a mask is recommended in all circumstances (for example, in open spaces or at home).
During the state of emergency (which ended on 14 May 2020), provision of free individual protective equipment (protective masks, protective gloves) and sanitary materials (soap, paper towels, disinfectants) was part of the preventive health and safety measures to be taken by employers.
The state of alert regulations oblige only employers carrying out activity in shopping centres to provide individual protective equipment (including masks).
However, in Romania, employers have a general obligation to ensure employees’ health and safety, which includes providing protective equipment. So, irrespective of any provisions under the state of alert regulations, arguably all necessary protective equipment (including masks and gloves) must be made available by the employer (at no cost to employees).
Employers must also comply with health and safety guidance from the relevant authorities.
5. When can business travel resume and what are the key considerations for employers?
Though not explicit, and although the travel restrictions are appearing to be gradually lifted, it seems that the Romanian authorities’ recommendation is still to continue to limit or avoid business travel as much as possible – particularly travel abroad – during the state of alert. This is particularly so because:
- flights to and from many countries (Austria, Belgium, Switzerland, France, Germany, Iran, Italy, Netherlands, Spain, UK, US, Turkey) remain suspended, presumably throughout the state of alert; and
- people returning from any international travel are placed for 14 days in mandatory self-quarantine, at home or another declared location, together with all people they live with, with certain exceptions like:
- drivers (of freight vehicles with a maximum authorised capacity over 2.4 tonnes);
- pilots and cabin crew; and
- representatives of foreign companies with Romanian subsidiaries who can prove their contractual relationship with the Romanian entities, if they do not show COVID-19 symptoms.
However, employees are able to travel within Romania, provided that all health and safety measures are observed (including observing social distance of at least 1.5 m and strict hygiene rules).
6. If schools remain closed, can working parents continue to work from home?
Schools remain closed for the rest of the school year, which ends on 12 June 2020. As a consequence, special leave for parents (and corresponding state support) continues to apply until 12 June 2020, if all eligibility conditions are met.
Employers may still prioritise working from home (though arguably only with the employee’s consent – see above) whenever possible. So although there is no express legal obligation on an employer to allow employees in sensitive situations (for example, parents of school children) to continue working remotely, it should be considered.