17. 3. 2020
At the time of preparing this section, no measures have been taken to prohibit certain forms of work, but ones to a similar effect, i.e. the stopping of individual employers' work processes resulting from the adoption of measures that prohibit or restrict the pursuit of individual activities, restrict the right of public assembly and public transport, causing employers to already face the question of how to reduce the labour costs of workers whose work has become temporarily unnecessary. Further clarifications on the Decree on the Prohibition of Sale of Goods and Services, which came into force on the 16th of March 2020, can be found here
. Businesses, however, are still able to sell goods and services remotely to consumers, and also allow the sale of goods and services between businesses (B2B).
The Government of the Republic of Slovenia has already sent to the National Parliament an Intervention Act to be discussed on March 18th, 2020, to help employers retain the jobs of those workers whose work has temporarily become unnecessary due to the coronavirus. The content of the draft Intervention Act has been described in more detail in a separate article, which can be found here
In the case of natural disasters, including the coronavirus epidemic, the employer may, in accordance with the provisions of Article 169 of the ERA-1, order the performance of other work or work at another place (including work from home, for example) without the worker's consent. The employer is also obliged to ensure safety and health at work in the changed place of work and to take into account the specificities that apply to ordering and performing work from home. In the specific case, the employer (due to the need for quick action) is not obliged to fulfil all the prescribed conditions for work from home (such as making a risk assessment, contractual arrangement of all working conditions from home, etc.) before starting work from home, if he informs the Inspectorate of the Republic of Slovenia (by e-mail) about the commencement of work from home, and if he gives the worker adequate instructions regarding work from home, while providing an appropriate way of recording working time. In the case of work from home, the worker has the same rights as usual, with the exception of the right to reimbursement of transport costs - instead, he is entitled to compensation for the (potential) use of the worker's labour resources. The MDDSZ's explanations and recommendations regarding ordering and preforming work from home can be found here
, and the NIJZ's instructions on safe performance of work can be found here
If, due to force majeure, the employee is not able to perform work, he or she is entitled to 50% of the wage compensation, but not less than 70% of the minimum wage (i.e. approx. 658 EUR) paid by the employer. Current circumstances, such as the closure of educational institutions that left some parents without childcare for their children are, in our view, considered to be a case of force majeure that entitles the worker to absenteeism. The same applies to workers who, due to the cancellation of public transport, cannot come to work, where the employer has the opportunity to provide transportation at the employer’s expense or to provide a different form of (permitted) transport or, for example, order work from home.
If, due to circumstance, the employer may (temporarily) be able to do business (i.e. there are no objective barriers preventing the business) but cannot provide the worker with work, he / she may refer the worker (in order to keep his / her job) in writing to wait for work at home. In such a case, the employee is entitled to a salary compensation of 80 percent of his average monthly salary from the last three months without referral to waiting - in the case of an employer call, he is obliged to return to work immediately - in this part the matter is additionally regulated by the Intervention Act.
With regard to the frequent questions regarding the use of annual leave, we explain that the employee will be “forced” to take annual leave in cases where the employer already ordered collective leave in the annual calendar or when the use of leave has already been agreed between the parties. In all other cases, as a rule, the employer cannot "force" a worker to take leave. In these cases, the employer may explicitly warn the worker about the possibility of taking leave within a specified period and also suggest that the employee take leave, while pointing out that the later use of leave due to a re-increase in the volume of work or other circumstances related to the organization of work will not be possible. In such cases, the question may be raised as to whether or not the employee is entitled to any compensation for any unused leave which he / she will not be able to subsequently use due to the needs of the work process.
In order to avoid any disputes between the employer and employees in these emergencies, when it will not be possible to resolve them quickly, we advise that as many of these issues as possible be resolved by mutual agreement.
Law Office Fabiani, Petrovič, Jeraj, Rejc d.o.o.