Ensuring a safe workplace on the verge of an expected epidemic – questions and answers
The COVID-19 virus (also known as the coronavirus) has been spreading rapidly and affects Bulgarian employers daily by challenging them to organize in an adequate manner the work process in the companies. The number of employees who refuse to appear at work due to concerns that this might expose them to a potential contamination is quickly increasing. So is the number of employees who refuse to voluntarily stay at home in isolation following their return from trips to high risk destinations.
Below are our answers to some frequently asked questions raised by employers which wish to ensure safe working conditions on the workplace and in the meantime – to comply with the legal requirements.
What is the difference between a self-imposed isolation and a quarantine imposed by the medical authorities?
Self-imposed isolation is initiated by the employees themselves when they have suspicions that the virus might have affected them. Those employees do not have any symptoms that are typically revealed in cases of the actual disease. There are also no personal factors that would require a mandatory quarantine such as a recent trip to a high-risk destination (currently continental China and Italy are considered as such). Regardless of the above, the employees prefer to stay at home and so limit any exposure to other potentially affected people.
There are two main types of quarantine imposed by the medical authorities.
Where the employees do not reveal any symptoms but have recently returned from a high-risk destination, their general practitioners might place them under a quarantine at home by issuing them a sick leave document. This would also require that the employees have duly filled in a questionnaire before the border authorities when entering in the country.
Employees who have already shown actual symptoms are quarantined in medical centers and are provided with a sick leave document for the duration of their isolation.
Does the employer have to pay remuneration to the employees who are quarantined?
When the quarantine is initiated by the medical authorities, the employee is entitled to a sick leave compensation by the National Social Insurance Institute as in any other case of an absence due to a disease.
If the employee has decided to isolate himself on his own initiative, then he may ask the employer to approve the use of paid leave days for the duration of the quarantine. Hence, the employer will have to pay the employee’s remuneration. Alternatively, the employee may ask to use some days of unpaid leave in which case the employer will not bear the obligation to pay any remuneration for the respective period.
Can the employee raise claims for remuneration against the employer even though the employee has decided to isolate himself but not to use days of paid leave?
The answer to this question will vary on a case-by-case basis depending on the employee’s function. The Bulgarian Labor Code allows all employees to lawfully refuse to work where a serious and imminent threat has occurred for the safety of their lives and health. In such cases the employer has to pay remuneration for the period of the threat even though no actual work was done by the employee.
Based on this legal opportunity, employees whose daily functions include permanent face-to-face contact with people (such as public transport drivers, front office employees, etc.) may refuse to work. In those cases, the employee will bear the burden of proving that there is an imminent threat to his health. This could turn out to be practically impossible to fulfil as at this point in Bulgaria there are no officially reported cases of COVID-19. Thus, a claim that there is a real epidemic in the country which is a threat to the public health could hardly be valid.
Employees who are not exposed on a daily basis to risk factors that may lead to contamination will also be in a difficult position to prove that they have the lawful right not to work and yet to be paid their remuneration.
Is the employer allowed to ask the employee to leave the workplace and stay at home when in doubt that the employee might be affected by the virus?
The employer may not unilaterally impose on the employee the use of paid or unpaid leave. Further, the employer may not oblige the employee to conduct himself a medical examination.
There is only one situation in which the employer may lawfully prohibit the employee to stay on the workplace, namely when the employee’s health status would not allow him to perform his work obligations (for example, when the employee is feverish and therefore incapable of working).
What are the employer’s options if it wishes to limit the employees’ presence on the workplace in order to avoid potential contamination?
If the nature of the employee’s position allows so, the employer may offer the “work from home” option to its employees. This would require the execution of an annex to the employment agreement whereby the rules on the work from home are settled. If needed due to the circumstances, the document exchange for the annex may be made remotely (e.g. by courier).
When the nature of the employee’s role would not allow the implementation of the “work from home option” (such as cashiers in stores), the employer may offer the employee additional one-off use of paid leave. This will have a two-folded effect. On the one hand, the employee will not be financially impacted by his stay at home. On the other hand, the employer will ensure safe working environment in the workplace for all of its other employees and/or clients.
Are employees quarantined by an order of the medical authorities allowed to work while isolated?
No. The employees whose isolation is made due to a decision of the medical authorities and are therefore provided with a sick leave document, are not allowed to work while quarantined. This applies both to employees who are isolated at home and those who are hospitalized. The breach of the prohibition would require that the employees return the compensation paid by the National Social Insurance Institute while under quarantine because a remuneration has been simultaneously paid for the same period.
What measures may be applied by the employer to ensure prevention and health and safety working conditions given the expected epidemic?
It is recommendable that the employers encourage their employees to immediately notify if there are concerns that the employees might be affected by the virus (for example, if the employee has recently traveled to a high-risk destination; the employee was in contact with a sick person, or the employee is experiencing any of the symptoms typical for the disease such as high fever). In those cases, the employers will process sensitive personal information for their employees therefore such reported events have to be processed in confidentiality. Information to the other employees is to be disclosed once anonymized.
Anonymized information is also to be shared between different employers which are situated in one and the same business or office center/building as this will ease the control over the spreading of the disease.
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