27. 10. 2020

ZZUOOP or PKP5 – Changes in the Field of Labour Law

On the 23rd of October 2020, the Provisional Measures for the Mitigation and Elimination of Consequences of COVID-19 (“ZZUOOP”) or the Fifth Corona Act was published, which (among other things) extends the wage subsidy scheme for furloughed employees, quarantined employees and the carer’s benefit scheme . It also grants employees the right to short-term absence from work due to illness without having to obtain a sick leave certificate. 

Wage subsidy scheme for quarantined employees and carer’s benefit scheme

ZZUOOP regulates wage subsidies for employees quarantined under the Infectious Diseases Act ("ZNB") or ZZUOOP (this measure was also regulated by the Fourth Corona Act or ZIUPDV) from the 1st of October 2020 onwards . In this case, employees will be entitled to their wages if the nature of their job prevents them from working from home while quarantined e.g. bus drivers, construction workers, etc. Quarantined employees working from home will have the rights as employees during work from home if the employee was not quarantined due to his/her actions e.g. non-essential travel to a country on the red list. 

An employee must notify their employer that they have been made subject to a quarantine order and the grounds for the order no later than 24 hours from the order date and furnish the quarantine order decision to the employer withing three working days of receiving it. If the employee is absent for other justified reasons (e.g. sick leave) while quarantined, the wage subsidy under ZZUOOP cannot be claimed for this period. Instead the provisions of their employment contract or the ZDR-1 shall apply. In the event that an employee becomes (or already is) entitled to work part-time while quarantined (on the basis of social security regulations), the wage subsidy is paid in proportion to part-time work, and compulsory social security contributions are paid as if the employee had worked full time.

The ZZUOPP reintroduces the right of employees to take leave to care for children (who have been quarantined or who cannot avail of day-care due to other objective circumstances) ("force majeure care leave"). This right covers only the care of children up to and including the 5th grade of primary school, children studying adapted and special curriculums in primary schools providing adapted curriculums and in institutions for the education of children with special needs and children who are granted companion assistance by way of an order.

With regard to force majeure care leave, the provision of paragraph 10 of Article 59 of the ZZUOOP seems somewhat unfortunate, since it requires employees to inform the employer of all circumstances giving rise to the force majeure within three working days of the occurrence of "force majeure". We believe that, regardless of the aforementioned deadline, the employee's obligation must be interpreted as meaning that the employer must be notified of the employee’s (planned) absence as soon as possible, and must provide the employer with comprehensive information about the situation within three working days, including the reasons giving rise to force majeure and its expected duration (and, for example, also as to whether part of the leave will be taken by the other parent, etc.). 

Force majeure care leave benefit is equal to lay-off benefit (e.g. 80% of the base set down under Article 137/7 of ZDR-1). The worker is granted this right for the duration of force majeure. The right to take force majeure care leave is exercisable from the 1st of September 2020 to the 31st of December 2020, whereby the Government of the Republic of Slovenia may extend this period by a maximum of six (6) months. 

An employee's right to wage subsidy while quarantined (provided the employee is not in quarantine as a result of his/her actions e.g. non-essential travel to a country deemed as having a high rate of COVID-19 infection) lasts for the duration of the quarantine. This right was regulated by the legislator for the period from October 1st, 2020 to December 31st, 2020, and the Government of the Republic of Slovenia may also extend this measure by a decision for a maximum of six (6) months.

Otherwise, the ZZUOOP (same as the ZIUPDV before it) sets down varying wage subsidy amounts depending on reasons why the quarantine was ordered or quarantine decision issued. Article 137/7 of ZDR-1 sets this at 80% of the basic salary (i.e. an employee's average monthly salary for full-time work in the last three months before the beginning of the leave), where an employee has been quarantined (i) following travel from a country that was on the green or orange list at the time of departure and is on the red list on return, or (ii) due to contact or suspected contact with an infected person (non-work related). However, if an employee has been quarantined for contact with an infected person during the course of his/her work, the employee is entitled to a salary compensation in the amount he would have received if he had worked (i.e. the principle of reimbursement of lost income). 

As under the ZIUPDV, an employee is not entitled to salary under the ZZUOPP if the employee is quarantined because he/she returned to Slovenia from a country that is on the red list (and was also on the red list at the time of departure), unless the reason for visiting that country is included on the list of exceptions or the employee's personal circumstances, namely: 

  • the death of a spouse or common-law partner or the death of a child, adopted child or a child of a spouse or common-law partner; 
  • the death of parents (father, mother, spouse or common-law partner of the parent, adoptive parent); 
  • the birth of a child; 
  • summons to court. 

In these cases, the employee is entitled to 50% of the salary to which he/she would otherwise be entitled if he/she had been at work, but not less than 70% of the minimum wage (which amounts to EUR 658.40 gross). An employee must notify the employer in writing no later than one day before departure stating that they are travelling to a country on the red list due to one of the listed personal circumstances. 

Under ZZUOOP, the State shall reimburse employers for wages paid to employees in quarantine and on force majeure care leave, monthly (pro rata or in full) on the last day of the month following the salary payment month. Of course, the employer is entitled to the reimbursement provided it has actually paid the employees their wages and all related taxes and contributions.

The wage subsidy scheme can be accessed by filing an electronic application with the Employment Service of Slovenia ("ESS"). For wages already paid by employers before the entry into force of this Act (in particular force majeure care leave benefit for the month of September), employers must claim the subsidy within 8 days of the entry into force of this Act, i.e. by October 31, 2020 or November 2, 2020 (as the deadline expires on Saturday), and in other cases within eight (8) days from the start of the employee's absence. 

In the case of ordered quarantine, the application must be accompanied by a copy of the quarantine order decision (claims can not be made without it) and a statement from the employer stating that it is not possible to organise work-from-home arrangements, while in cases of quarantine following travel to a country on the red list, a statement made by the employee detailing the personal circumstances that gave rise to the need to travel (on the basis of which the employee may be entitled to a salary subsidy; otherwise the employee is not entitled). In the event of force majeure care leave, the application must be accompanied by a statement given by the employee about the circumstances giving rise to the force majeure. Please note that claims will not be processed without an employee statement. 

Where an employer is eligible for the wage subsidy scheme, the ESS concludes a contract with the employer to regulate mutual relations, obligations and responsibilities.

Extension of the furloughed employee wage subsidy scheme

ZZUOOP "extends" the furloughed employee wage subsidy scheme for employers who are temporarily unable to provide employees with work due to the consequences of the epidemic. Employers may furlough employees until the December 31, 2020 the latest, whereby the Government of the Republic of Slovenia may extend the scheme for a maximum period of six months (but not beyond June 30, 2021), provided that the Temporary Framework for measures of state aid to support the economy at the outbreak of COVID-19 extended to 2021. 

Among other things, the Act also raises the threshold for the decline in revenue that an employer must suffer in 2020 (compared to 2019) in order to be entitled to avail of this scheme under this Act to more than 20% of net sales revenue. 80% of a furloughed employee’s basic salary may be subsidised under Article 137/7 of ZDR-1, whereby the subsidy may not be less than the minimum salary (i.e. EUR 940.58 gross). In the event that the employee received a lower salary during the reference period due to the employee being designated a part-time employee, the salary in the last three months before he/she was designated a part-time employee shall be considered as the basis for salary compensation. 

Employers are entitled to an 80% subsidy of an employee’s (gross one amount) wage, but which is capped at unemployment benefit ceiling (i.e. EUR 892.50). 

In the event that the employee has other grounds for a justified absence during the furlough period, the ZZUOOP shall not apply, and the employee is entitled to compensation on this other basis for this period.

While furloughed, the employee retains all rights and obligations arising from the employment relationship, except for those specially regulated by the ZZUOOP. The employee is also obliged to return to work at the request of the employer for up to seven working days in the current month, and the employer must - as before - inform the ZRZS in advance, as otherwise it will be required to return the subsidy. 

The employer must furlough the employee in writing, where he determines the time of furlough, the possibilities and manner of calling the employee (to return to work early) and the amount of salary compensation. 

Wage subsidy claims are made via an electronic application to the ESS, within eight days of furloughing the employee (the application can be submitted no later than December 15, 2020) for employees furloughed prior to the entry into force of the ZZUOOP (for the period from October 1st onwards), within eight days of the entry into force of the law. The application must be accompanied by an estimate of the decline in revenues, as well as orders or decisions to furlough workers. The competent authority (i.e. ESS) decides on the application within 15 days of submission, with the wage subsidy being paid to the employer on a monthly basis (in proportion or in full) on the tenth day of the month following the month in which the employer paid the employee. 

Pursuant to the law, the ESS has the right to monitor wage subsidy payments as well as the implementation of an issued decision, and employers must facilitate this monitoring to take place. Furthermore, during the implementation of this scheme, the employer may not order workers to work overtime (who work) or temporarily reassign them (if the employer could do this work with furloughed workers), and it must, as stated, inform the ESS in advance of the return of any furloughed employee to work. If an employer breaches these duties, it must repay the received subsidies in full. Subsidies are also repayable by employers if they file a petition to have the company wound up while still in receipt of wage subsidies. They are also repayable for a period after the subsidies have been stopped, which shall be equal to the overall period for which the employer was in receipt of the subsidies. The law also prohibits the termination of an employment contract for business reasons for employees who have been furloughed, as well as the termination of employment contracts for business reasons to a larger number of employees (unless the program was adopted before March 13, 2020 and the employer did not avail of the wage subsidy scheme for these workers under the intervention legislation).

The right to short-term sick leave without a sick leave certificate 

The law also regulates an employee's right to a onetime short-term sick leave for a maximum of three consecutive working days. It should be noted that this type of absence (it is supposed to be a temporary measure, which should be valid until the end of 2020 and which can be extended by the Government of the Republic of Slovenia for a maximum of six months) can be exercised only once in a calendar year but without the need to produce a sick leave certificate issued by their General Practitioner. While on sick leave, an employee may not carry on any activity for profit or leave their place of residence. 

The employee must notify the employer in writing or electronically of the short-term absence on the first day of absence. The wage subsidy for the short-term absence is calculated at 80% of the employee's salary in the previous month for full-time work. The employer must submit a wage subsidy application in electronic form to the HIIS no later than three months after the short-term absence from work has ended, and the HIIS shall reimburse the employer within 60 days of the application filing date. Additionally, employers are entitled to a wage subsidy only in cases of short-term absence due to illness without a doctor's certificate. If the employee's General Practitioner finds that the employee is temporarily justifiably absent from work even after a short absence, the absence is deemed as standard sick leave, and the employee's right to special leave under ZZUOOP remains unused. 

The Act also provides for the possibility of extending the measure of partial subsidization of part-time work under ZIUOOPE (for a maximum of six months, by a decision of the Government of the Republic of Slovenia, which must be issued no later than December 20, 2020) and it explicitly states that testing for COVID-19, which is provided to employees by the employer, is not considered a benefit-in-kind within the meaning of ZDoh-2. 

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

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