The coronavirus is already having its unfortunate impacts in the whole world and there is almost no sector which has not been rocked by the effects of the virus. In this rather difficult situation, it is questionable for the employer how to manage their resources and how to protect their employees. The decree of the government effective from 19th March 2020 gives certain tools to the employers which may help them to optimize their operations and to defend their employees. In our short article we summarize these measures.
1. Home office with unilateral instruction
The official communication encouraged companies even before the declaration of the emergency situation to ensure their employees the possibility to work from home in order to prevent the spreading of the virus.
Long-term home office as the typical from of remote work however was only possible based on the agreement of the employer and the employee in accordance with the Labour Code.
By contrast, the government decree provides the possibility to the employer to unilaterally order home office and remote work for the employees during the emergency situation.
2. Flexible amendment of the work schedule
The government decree also creates the possibility to amend the work schedule in a flexible way which can be an important tool in the employer’s hands to adopt his human resources’ needs to the quantity of the daily task which in the current situation are often changing.
As a general rule, based on the labour code the communicated work-schedule can only be amended at least 96 hours (4 days) prior to the scheduled start date if unforeseen circumstances arise in the operation of the employer (e.g. the raw material does not arrive on time).
Based on the government decree, during the emergency situation, this 4-days limit shall not be applicable, and the employer can amend the work schedule any time before the scheduled starting date as far as reasonable.
3. Checking the health status of the employees
Besides the employment point of view, it was questionable because of data protection aspects how the employer can process the health data of the employees and whether the employer can carry our health checks, for example temperature checks.
The official standpoint of the Hungarian Data Protection Authority is that even in the present critical situation the employer can only process the employee’s health data to a very limited extent and the authority considers it disproportionate to carry out health checks (e.g. temperature checks) generally on all employees.
However, based on the government decree the employer is allowed to take the necessary and proportionate measures to check the health status of the employees. It is our opinion that based on the government decree, with sufficient justification, the employer may introduce measures like obligatory temperature checks for all employees.
4. Derogation based on the agreement of the parties
Besides the above measure the government decree sets forth that the parties may derogate from the provisions of the labour code based on their agreement.
Because of the laconic wording of the decree it is not fully clear to which extent the derogation is possible.
Based on the government decree the reason of the application of the labour code with different provisions is the compliance with the limitations and prohibitions provided during the emergency situation. Based on this consideration we think that the derogation from the labour code is only possible in relation to the working time and remuneration.
© International Law Firms 2016-2017 All rights reserved.
3, Montée de Clausen, L - 1343 Luxembourg
Luxembourg Commercial Register Number F-9208.