On 12 March 2020, the Government of the Republic of Estonia declared an emergency situation until 1 May 2020. No emergency situation has ever been declared in Estonia before. As there are no special regulations nor practice regarding employers’ and employees’ rights and obligations during an emergency situation, we would like to give you a small overview of various aspects of the employment relations that the employer should consider during the rapid spread of the coronavirus.
Safety and hygiene in the workplace
The Occupational Health and Safety Act requires employers and employees to co-operate to ensure a safe working environment. In order to ensure this and prevent employees from falling ill, an employer should take appropriate measures, such as providing the employees with the necessary hygiene products and disinfectants, and remind them of elementary hygiene procedures. It is also important to ensure the cleaning of frequently used rooms, objects and surfaces, and to avoid large meetings and non-critical business trips.
According to a Health Board recommendation, individuals who have visited an area where the coronavirus has spread but have no symptoms of the virus should monitor their health during 14 days and contact their doctor immediately by phone if they develop a fever, cough or breathing difficulties. Considering the above, an employer should recommend that employees returning from a high-risk area remain at home (to work from home if possible) for 14 days and support the employees in doing so.
If an employee has fallen ill, the employer should immediately send the employee home. With regard to other employees, the employer should ask them to monitor their health and remain at home if any symptoms of illness appear. There is no specific requirement to report coronavirus cases to the authorities: this is done by healthcare service providers.
An employer should also provide employees with instructions on what to do if they have symptoms of the coronavirus and inform employees regarding the organisation of work during the rapid spread of the virus.
In view of the employers’ statutory obligation to ensure a safe working environment for their employees, employers have a justified interest in knowing whether any of their employees are infected or have recently travelled to a high-risk area. Therefore, an employer may ask the employees for information regarding the above. Employees may refuse to disclose this information; however, the refusal could be treated as a breach of occupational health and safety-related duties. The employer may also require that an employee undergoes a medical examination.
If no measures concerning work are applied at the national or local government level, but the risk of infection is significantly increased and the working environment is no longer safe for the employees, the employees could have the right to refuse to work. As no specific regulations exist on this, employers would still be required to pay average salary to the employees in such cases.
Organisation of work during the rapid spread of the coronavirus
Where possible, the employer may ask employees to work from home. However, the employer does not have the right to force employees to work from home if they have not been infected. However, considering that remote work from home is the recommended measure in order to ensure the health and safety of the employees in connection with the spread of the virus, it may be argued that employees who refuse to work from home without good reason are not acting in good faith and it is questionable whether the employer is required to pay under such circumstances. However, there is neither specific regulation nor practice on this.
As the employer is required to cover work-related costs, employees working from home may ask for internet connection costs to be compensated to them in the amount that such costs have occurred or increased in connection with working from home.
Occupational health and safety of remote workers is also not specifically addressed by law, but according to the recommendations of the Labour Inspectorate, the employer is still required to instruct the employees on how to furnish the workplace for safety, on taking breaks etc.
It is recommended to cancel all non-critical business trips to risk areas. If an employer decides to send an employee on a business trip to a high-risk area, the employee may refuse to go. This cannot be considered a violation of the employee’s duties.
An employer may decide to close the workplace as a preventive measure. In this case, the employer must continue to pay the employees and grant other rights and benefits to them under their employment contracts and the relevant legislation.
Employees returning from a high-risk country without symptoms of the coronavirus will not be granted preventive sick leave. In this case, the employer may ask the employee to work from home by providing full pay for the entire time the employee is working from home. If working from home is not possible because of the nature of the work or because the employee does not agree to work from home, the parties may agree on paid or unpaid vacation. However, an employer does not have the right to impose such a vacation unilaterally (unless the paid vacation was scheduled for the respective period in the holiday schedule prepared for the calendar year and communicated to the employees before 31 March 2020).
Employees showing symptoms of the coronavirus will be granted sick leave by a doctor. Sick leave may also be granted if the employee has had direct contact with a person with coronavirus. The first three days of illness are unpaid. Sickness benefit is paid by the employer from days four to eight. From day nine, the Health Insurance Fund pays.
Based on the Employment Contracts Act, the employer may reduce an employee’s pay for up to three months over a period of 12 months if, due to unforeseen economic circumstances beyond the employer’s control (e.g. arising due to the coronavirus), the employer cannot provide the employee with the agreed amount of work and payment of the agreed remuneration would be an unreasonable burden on the employer. The remuneration may be reduced to a reasonable extent, but not below the minimum wage established by the Government of the Republic (584 euros per month or 3.48 euros per hour). An employee has the right to refuse to perform work in proportion to the pay reduction.
Before reducing pay, the employer must offer the employee other work (including work that can be done remotely) if possible and also inform the trustee or, in his or her absence, the employees and consult them pursuant to the procedure provided for in the Employees’ Trustee Act. An employer must provide notice of a pay reduction at least 14 calendar days in advance. The trustee or the employee must give his or her opinion within seven calendar days of receiving of the employer's notice.
An employee has the right to terminate his or her employment contract upon a pay reduction, notifying the employer five working days in advance. Upon the termination of an employment contract, the employee is entitled to compensation in the amount of one month’s average salary of the employee. In addition, the employee is entitled to a benefit under the conditions and pursuant to the procedure prescribed in the Unemployment Insurance Act.
Extraordinary termination of employment contract due to economic reasons (lay-off)
An employer may extraordinarily terminate an employment contract if the continuance of the employment relationship under the agreed conditions becomes impossible due to a decrease in the work volume or reorganisation of work or other cessation of work, including as a result of the coronavirus. If an employer decides to extraordinarily terminate an employment contract due to economic reasons resulting from the coronavirus, the general lay-off regulation stipulated in the Employments Contract Act applies.
Any form of discrimination is prohibited. This means that employees of any nationality or ethnicity which is associated with high-risk areas must not be discriminated against based on their nationality or ethnicity. Employees must also not be discriminated against on the basis of their health status, that is, if they have been diagnosed with or are suspected to have the coronavirus.
Currently, the situation regarding any contributions from the state to employees or employers due to the emergency situation is unclear. There is no special regulation or practice in this matter. Members of the government have generally declared that it is possible that the state will partially compensate employers for damage caused by the emergency situation. Most likely measures will be sector-specific, targeting areas such as tourism and transport.
For recent updates related to the coronavirus, please see the Health Board’s webpage.
The article was prepared by Partner Karina Paatsi, Senior Associate Heili Haabu and Associate Johanna-Britt Haabu