Andrea Vasiľová participates in the IR Global Disputes Virtual Series – COVID-19: Unprecedented Times, Desperate Measures

Foreward by Andrew Chilvers

The coronavirus pandemic has caused governments across the world to take measures that impact the movement of people rarely if ever, seen in peacetime before. Understandably, this has adversely affected businesses and created a host of employment law issues in every country.

When the first case of coronavirus – or COVID-19 – was reported in Wuhan, China in December 2019, nobody could have guessed that within three months it would spread across the globe at lightning speed. Indeed, from the start of March hundreds of thousands of cases of the disease have been reported in more than 160 countries and territories, resulting in thousands of deaths.

The speed of the spread of the virus – declared a pandemic by the World Health Organization on March 11 – caught governments across the world off guard. And many have since reacted with draconian action. This includes travel restrictions, quarantines, curfews and event cancellations, and advising people to avoid all but essential contact with each other for the foreseeable future.

Of course, this has had a tremendous impact on employment and with employment law in ways that have never been seen before. For instance, with employees being told to stay at home, flexible working has become more common than ever, although in some professions it just isn’t feasible. What this means for employers and employees – especially in terms of payment for those employees who have to take time off because they are sick, to quarantine or self-isolate, or to take care of dependents – has never been tested and different jurisdictions are reacting in different ways.

With the COVID-19 crisis and the response to it among different countries evolving daily, employment lawyers are advising employers on what they can or cannot do to safeguard their businesses and their employees under existing legislation. And the disease is spreading faster than laws can be adopted – although some countries are starting to respond quickly to take care of workers and ensure that businesses stave off bankruptcy.

How are companies responding to COVID-19 (the coronavirus) and what practical suggestions do you have?

The first response of the companies to COVID-19 was that, where possible, the companies started to send their employees to work from home, as prevention towards the spread of the disease, but also as a solution for those employees who had to stay home with the children because the primary and secondary schools were closed.

Thereafter, our government reacted to the spread of COVID-19 and there was an emergency declared in Slovakia, which means that the government adopted particular rules that have to be followed by the public, the authorities and private companies. With immediate effect all schools including universities were closed, all shops and businesses except grocery stores, pharmacies and drugstores were closed, all public, sport and cultural events were cancelled.

The authorities shortened their service hours and asked people to arrange as much as possible for public services online. The borders were closed and only Slovak citizens and foreigners with residence permits were allowed to enter the country. All international freight (except for supplies) stopped, international passenger transport also stopped and the domestic transport has been operating on a reduced service. The aim is to let people stay home in order to protect themselves from the disease and also to stop spreading the disease.

For those people coming back to the country from abroad, there is an obligatory 14 days quarantine period. Both employers and employees prefer working from home which is fully paid by the employer. But if the type of work does not allow working from home the employer is obliged to ensure employees’ health and safety arrangements are put in place, or excluding business trips during the pandemics, by reducing the number of people at work (to allow working at home and shift work), by arranging permanent access of the employees to disinfection and hygienic products.

In case of illness, the employee is entitled to sick leave from which the first 10 days are paid by the employer (the first 3 days is 25% of average gross salary, from 4th to 10th day it is 55%). After 10 days, sick leave is paid by the Social Insurance Agency up to 55% and is unlimited.

Those employees who have to stay home with children because of closed schools are entitled to a payment by the Slovak Social Insurance Agency called “nursing family members” for a maximum of 10 calendar days. However, this applies only to children up to 10 years of age, otherwise, the employee has to take a holiday or unpaid leave.

The coronavirus is moving faster than the law – how are lawyers responding and adapting to this evolving crisis?

The same situation is in Slovakia. Initially, there was no change in legislation but the current government reacted to the evolving crisis by declaring the emergency and by adopting the harsh measures as mentioned in Q1. Moreover, the Slovak parliament was not functional for a couple of weeks because we were awaiting the new parliament following the general elections from 29th February 2020. The new government will be appointed on 21st March 2020 and so the new parliament will start work. Their first task will be to adopt the measures which will help not only the companies and freelancers but also the employers to overcome this difficult period (i.e. deferred tax, social and health insurance payments, deferred loans payments, etc.) So there is not a change to the legislation at this moment, and we’re continuing to follow the Labour Code. If due to the current situation regarding the virus the employer needs to change their labour conditions as agreed with the employee in the employment contract, this may be made only by the change of the employment contract on the basis of the mutual agreement of both contracting parties. In general, employers are currently trying to make it easy for employees, so they allow them to work from home where possible. All measures adopted by the employers in this crisis have to be in compliance with the Labour Code and related laws.

How are specific industries or sectors and their employees impacted and what are the potential legal consequences?

I would start with our profession. At the beginning of this crisis, we received the first recommendations from the Slovak Bar Association regarding visits of clients in jail and custody and the courts. These are useful for the attorneys who practise the law and litigation. There is a special regime and the attorneys have to be checked before they are allowed to see clients in jail. However, it is recommended to reduce the visits a minimum. Also, the courts started to postpone the terms of the trials set in March 2020 to later terms.

Elsewhere, people working in the gig economy will be the first who will lose their jobs because employers will still have to pay regular employees, and this could be a problem. From the Slovak legal point of view in the gig economy, there are strict restrictions in the Labour Code when for how long and upon which conditions the employer can employ the employee for a short-time period. So, our gig economy is working mostly on the basis of freelancers and, if someone is working on the basis of the commercial contract, this will be the first person the companies are going to let go of because they have to pay regular employees. I think that there are tough times coming for the freelancers in the near future.

Also, for instance, the automotive industry will be impacted hugely as all four automobile factories announced a halt in production for at least one month due to COVID-19 and due to a decline in demand during the current crisis.