15. 7. 2020

The fourth "Corona Act" had already been passed; what does this mean for employers?

The Act on Intervention Measures in Preparation for the Second Wave of COVID-19 ("ZIUPDV" or "Fourth Corona Act") in the field of labour law provides (i) the extension of the measure subsidizing compensation for work to those employees for whom the employer cannot provide work due to business reasons; (ii) compensation and reimbursement of wage compensation for employees who have been quarantined when crossing the border or in contact with an infected person. 

In the part that determines the extension of the measure for reimbursement of wage compensation to furloughed employees, the ZIUPDV applies from 1 July 2020 onwards, and in the remaining parts it applies from 11 July 2020 onwards.

Extension of the measure for reimbursement of wage compensation to furloughed employees 

ZIUPDV "extends" the validity of the measure for reimbursement of wage compensation to furloughed employees for all employers until 31 July 2020 - the Government of the Republic of Slovenia with the ZIUPDV reserves the right to extend this measure twice, each time for one month, and no later than the 30th of September 2020. Employers can therefore currently furlough employees only for the month of July 2020, which means that - at least in our understanding - we should adopt new decisions in this regard, furloughing employees in accordance with ZIUPDV. If employers have previously issued decisions stating that employees have already been furloughed in accordance with ZIUPDV for this period (which is covered by the ZIUPDV), then we are of the opinion that a new decision does not need to be issued, under the assumption that the original decision already has all the mandatory components required by the ZIUPDV.

In summary, employers are entitled to state aid, if according to their own estimates revenues in 2020 fell by more than 10% compared to 2019 (i.e. net sales revenues determined according to the accounting rules and benefits from parental care insurance). due to the epidemic. The law also regulates more detailed criteria for those employers who did not (yet) operate in 2019 or who operated only part of 2019. If the submission of annual reports for 2020 shows that the conditions are not met, the recipient will have to return the received funds. The Act also excludes some other employers from the circle of beneficiaries of subsidies (mostly following the restrictions already set by ZIUOOPE and the Act on Intervention Measures to Contain the COVID-19 Epidemic and Mitigating its Consequences for Citizens and the Economy ("ZIUZEOP") e.g. the third and second Corona Acts).

During the duration of this measure, the employee has all the rights and obligations arising from the employment relationship (except those otherwise regulated by this Act), as well as the obligation to return to work at the request of the employer within seven working days in the current month, whereby the employer must inform the ESS in advance. 

In addition, the employee is entitled to salary compensation under another legal basis (and therefore not on the basis of being furloughed) in certain other cases of justified absences, not only in the case of absence under regulations on health insurance or parental care (such as valid, for example, according to ZIUOOPE and ZIUZEOP). Such cases are, for example, absence due to a holiday (if the employee would not work due to the holiday, even if he/she were not furloughed), the performance of civil duties and other cases of justified absence for which the right to salary compensation is provided. 

The employer must provide a written document in order to furlough employees, whose content is the same as with ZIUOOPE. The amount of salary compensation is still 80% of the base referred to in paragraph 7 of Article 137 of ZDR-1, whereby the compensation may not be lower than the minimum salary (940.28 EUR) in the Republic of Slovenia. 

For such paid salary compensation, the employer will be able to apply for a subsidy or partial reimbursement of wages, which in no case may exceed the maximum amount of unemployment benefit (i.e. 892.50 EUR). Furthermore, the ESS will in any case reimburse the employer a maximum of 80% of the compensation paid.

The employer exercises the right to reimbursement of paid salary compensations under this Act at the ESS, with an application in electronic form, which must be submitted within eight days of the employee's furlough of employees (or until 19 July 2020, if the employees were furloughed before the entry into force of ZIUPDV) and in any case no later than 31st of July 2020. In addition to the application, the employer must provide a statement of declining income and evidence of the furlough due to temporary inability to provide work for business reasons. An employer who is in arrears with the payment of compulsory benefits and other monetary non-tax liabilities or an employer who is in the process of bankruptcy or liquidation is not entitled to a refund of paid wage compensations. The ESS decides on the application within 15 days, with a decision; however, the reimbursement is paid to the employer after the employer has already paid the wage compensations to the employees. The reimbursement shall be paid the 10th day of the month following the month of payment of the salary allowance.

During the period of receiving refunds of paid wage compensations, the employer must pay the employees compensation (on time and in full amount), and during this time the employer must not order overtime work or temporarily reallocate working time to working employees, if this work could be done with furloughed employees. Also, the employer may not, for business reasons, dismiss a employee for whom he claimed reimbursement dur to the furlough or terminate the employment contracts of a large number of employees for business reasons (unless the program for this procedure was adopted before the 13th of March 2020 and the employer did not claim a subsidy for these employees under ZIUOOPE or ZIUZEOP). 

If the employer decides to call the employee back to work (for up to 7 days a month), he must inform the ESS in advance

If the employer does not act in accordance with the obligations referred to in the previous paragraph, the employer must return the funds received in the triple amount. At the time of receiving the salary compensation, the employer may not dismiss the employee (for whom he received the subsidy) and is obliged to return the received funds in full if he initiates liquidation proceedings under ZGD-1, during the period of receiving funds and within one month after receiving funds (or for a period equal to the period in which he received the subsidy).

Compensation for the employee's salary due to the ordered quarantine 

The new measure introduced in the field of labour law by the fourth Corona Act (the second Corona Act already regulated this, but the regulation with the third Corona Act fell out of the provisions) is certainly the reimbursement of compensation for the salary of a quarantined employee. In doing so, the law lays down special provisions regarding the amount of salary compensation due to such employees and binds the amount to the reason the quarantine was ordered. 

The ZIUPDV thus stipulates that employees who have gone to a country that is on the green or yellow list and have been quarantined when crossing the border in the Republic of Slovenia, and employees who have been quarantined due to contact with an infected person and therefore cannot perform their work, not even at home, a salary compensation is due in the amount of 80% of the employee's average monthly full-time salary from the last 3 months or from the period of work in the last 3 months before the start of absence. 

In cases where employees are quarantined due to contact with an infected person in the course of working for the employer and therefore cannot perform their work, not even at home, such employees are entitled to compensation for the salary that the employee would receive if he worked (100% of their average monthly salary from the last 3 months).

Employees who have been quarantined due to a departure to a country on the red list are not entitled to salary compensation during the time of the ordered quarantine. The exception applies only in cases where departure to such a country is necessary due to the explicitly listed following personal circumstances, namely (i) death of spouse or common-law partner or death of child, adopted child or child of spouse or common-law partner, (ii) death of parents - father, mother, spouse or common-law partner of the parent, adoptive parent and (iii) birth of a child. Only in these explicit cases is the employee entitled to a wage compensation of 50% of the wage to which they would otherwise be entitled if they worked, but this wage compensation may not be less than 70% of the minimum wage (i.e. not less than 658.39 EUR gross). In the latter cases, the employee must submit a written statement to the employer stating the personal circumstance, no later than 1 day before (!) departure

We believe that employees who have been quarantined due to departure to a country that is already (at the time of departure) on the red list and who consequently cannot perform work (even from home) due to the ordered quarantine, can be are considered as unjustifiably absent from work, which may also mean consequences in the form of extraordinary termination of the employment contract. The Ministry of Labor, Family, Social Affairs and Equal Opportunities also clarified that the conditions of force majeure are not met if the employee knowingly goes to a foreign country for which the already valid regulations stipulate a quarantine order and if in such cases the employee fails to agree with the employer on another basis for absence (eg. unpaid leave), these consist of grounds for termination on the part of the employee for extraordinary termination of the employment contract, which means immediate termination of employment, and the employee is not entitled to severance pay.

If the employee is justifiably absent on another basis at the time of the ordered quarantine (e.g. sick leave or use of annual leave), the employee is entitled to salary compensation according to the concluded employment contract for these cases and no salary compensation can be claimed for this period.

The employer who declares that he cannot organize work at home for the employee who has been ordered quarantine is entitled to a refund of salary compensation due to the inability of the employee to perform work due to the quarantine. Reimbursement to the employer is due only for the time when the employee is actually quarantined by a decision of the competent ministry.

ZIUPDV imposes additional obligations on employees regarding the quarantine itself, namely that the employee must notify the employer within 3 working days of the quarantine order that the quarantine has been ordered and also inform the employer of the reasons why the quarantine was ordered (either due to crossing the state borders or contact with an infected person). At the same time, the employee will have to forward the quarantine decision to the employer within 3 working days of receiving it. In this regard, it should be added that the employee also has the obligation to inform the employer without delay of all circumstances that affect the fulfilment of obligations under the employment relationship and that it is not intended that the 3-day period in question relieves him of this obligation.

The subsidy (reimbursement of compensation) is claimed through an application submitted by the employer in electronic form to the ESS. The employer must submit the application, together with the decision of the ordered quarantine to the employee and the statement that the employee cannot perform work at home, to the ESS within 30 days from the beginning of the employee's absence due to the ordered quarantine. If the employee also claimed to go to the country on the red list due to personal circumstances, the employer must also submit this statement of the employee to the ESS. During the period of receiving the subsidy, the employer will have to regularly pay compensation to the employees who have been ordered quarantine (with the exception of those employees who have been quarantined for leaving the country on the red list, without good reason) and, of course, pay all contributions for compulsory insurance, otherwise the employer will have to return all (already) received funds. 

The salary compensation will be reimbursed in full (in the amount of 100% of the salary compensation) to employers, taking into account all circumstances and fulfilling all conditions under the ZIUPDV, and will be paid on the last day of the month following the month of payment of salary compensation. The employer will also have to provide the ESS with proof of payment of salary compensation to the employee (i.e. a payroll and a certificate of payment), as otherwise the employer will not be entitled to receive a refund. 

The relevant provisions of the ZIUPDV apply to the time when the employee is quarantined, and in any case no later than 30 September 2020.

The law also contains penal provisions that provide for high penalties for certain breaches of obligations, which is why we advise employers to pay special attention to the possible implementation of the described measures. 

Last but not least, the law also regulates the amendment of certain provisions / articles of the ZIUOOPE ("Third Corona Act") regarding the possibility of reducing working hours by partially furloughing employees. The new Act clarifies that the employer is obliged to enclose a written order of part-time work with the application for a subsidy submitted to the ESS, and that the employer who later invites the employee back to full-time work must inform the ESS in advance. This was necessary because the Labour Inspectorate, after conducting numerous inspections of employers, found that employers do not adhere to this measure, so the legislator wanted to define it in more detail with the fourth Corona Act. 

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Law office Fabiani, Petrovič, Jeraj, Rejc d.o.o.

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