Working from home during the state of emergency – what the employers can and cannot do?

25.03.2020

After 23rd March 2020, when the new Measures and Actions to be implemented in the course of the State of Emergency Act (“The State of Emergency Act“, “The Act”) was promulgated by Decree No. 71 of the Bulgarian President, a lot of questions arose for the employers. Some of the most frequently met ones concern the implementation of remote work.

What rights and obligations does the employer have in the light of this relatively new for our legal environment working arrangement?

Is it compulsory for the employer to establish remote work?

The answer is “NO” – art. 7 of The Act creates a legal opportunity, but not an obligation for the employer. Such obligation could arise only in some exceptional cases, when the workplace risk assessment (read more here) prevents working from the usual workplace. The remote work arrangement can be implemented unilaterally by the employer, while the consent of the employee is not necessary.

When is the implementation of remote work “impossible”?

The implementation of remote work is impossible, when the mere nature of the work does not allow for it. However, if the activity is related to accepting calls from clients, preparation of translations, accounting services, statistics data operations, even educating students, etc., remote work is completely acceptable. In other cases, when the physical attendance of the employee at the office is an inseparable part of his/her duties, working from a distance cannot be implemented (e.g. when performing courier services, or when the employee is a cashier at a food store, etc.). The employer is therefore obliged to conform with the relevant sanitary requirements, in order to ensure the safety and health at the workplace. In other words: whether it is possible or not to establish remote work, should not depend on the sole discretion of the employer, but rather on the workplace risk assessment and the objective nature of the work.

Are we allowed to implement remote work for part of the employees only?

The answer here is rather positive, having in mind the answers above. If all of the employees perform the same or similar activity and if, based on the workplace risk assessment, remote work is considered recommendable, the employer will have to implement that with respect to all employees. As long as the employers are not entitled to a discretionary assessment, they need to use objective and non-discriminative criteria – i.e. such, that are solely based on the workplace risk (as assessed) and the nature of the work. What is more: the employers cannot avoid the implementation of remote work, due to reasons under his own control, such as inability to provide all of the employees with the necessary technical resources, lack of tools for effective performance control, etc.

Are the employers subject to sanctions, if they do not comply with these requirements?

Until the promulgation of the Act, the recommendations for remote work were listed, as such in a Decree of the Health Minister and thus, these were not obligatory. Now, when these are shaped as statutory provisions and given the unconditional obligations of the employers to update the workplace risk assessments and the corresponding health and safety measures for the workers, it may be expected that either: i) coercive administrative measures can be applied by the relevant  authorities and regulators, such as the Labor Inspectorate, or ii) legal inspections can be performed by the Regional Health Inspectorates based on signals of employees, or iii) even the Commission for Protection Against Discrimination be approached, with the respective consequences for the employer.

In conclusion: While the implementation of remote work under the present pandemic conditions and instructions for social distancing is indeed just a legal opportunity for the employers, this opportunity could only be exercised lawfully if objective criteria are applied, any discrimination of employees is avoided and the workplace risk assessment is strictly observed.     

Ilya Komarevski, Partner, Attorney-At-Law
Ilya.komarevski@tbk.bg

Lyubomir Kyuchukov, Associate
Lyubomir.kyuchukov@tbk.bg