23. 12. 2020
On the 25th of November 2020, the National Assembly enacted the Act Determining the Intervention Measures to Mitigate the Consequences of the Second Wave of COVID-19 Epidemic (“ZIUOPDVE”) or "Sixth Corona Act" or so called "PKP6", which entered into force on the 28th of November 2020. With respect to labour law, PKP6 for the most part introduces changes and amendments to the provisions of the Fifth Corona Act ("ZZUOOP") regarding wage subsidy payments to furloughed workers and workers who, due to certain objective circumstances, are unable to work. It also amends working from home arrangements. On the 18th of October 2020 in response to a surge in new infections, Slovenia once again declared a COVID-19 pandemic. ZIUOPDVE is part of the response. Contrary to the wording of the draft PKP6 bill, the National Assembly rejected extending the part-time work subsidy scheme, which means that this measure (for the time being) remains in force only until the 31st of December 2020.
Wage subsidy scheme for employees ordered to quarantine or unable to work due to force majeure care leave, public transport closures or border closures
ZIUOPDVE adds to the ZZUOOP list of objective reasons or circumstances which qualify employees for wage subsidy payments (and employers to access the wage subsidy scheme). New reasons and circumstances include employees unable to work due to public transport closures or borders closures. In addition, ZIUOPDVE harmonises terminology related to quarantine with the provisions of the Infectious Diseases Act ("ZNB") - referral to quarantine and certificate of the referral to quarantine thus replace the ordered quarantine and the decision to order quarantine under PKP5.
In the above-mentioned cases (including public transport closures or border closures), employers can access the wage subsidy scheme for reimbursement of wages paid to employees, whereby entitlement to wage subsidy payments for those in home quarantine is assessed only based on ZIUOPDVE (ZZUOOP or PKP5 provided the ZNB also as the legal basis). In these cases, employees are entitled to wage subsidy payments at the rate set down under ZDR-1 for lay-off benefit (i.e. 80% of the basis under Article 137/7 of ZDR-1). Employees receive wage subsidy payments for the duration of the reasons justifying their absence, whereby employees must notify employers within three working days of the circumstances giving rise to force majeure. We are of the opinion that in such cases - regardless of the relatively generous statutory time limit - employees must notify the employer of the relevant circumstances as soon as the employee is able to do so.
The wage subsidy scheme is expected to run until 31st of December 2020, whereby the Government of the Republic of Slovenia may extend the scheme for a maximum of six months by way of an order (published in the Official Gazette of the Republic of Slovenia).
Under PKP6, employees are no longer directed to quarantine by way of a special order, instead they are referred to quarantine and receive a quarantine referral certificate. Employees in home quarantine qualify for wage subsidy payments (under the same conditions as under PKP5). Employees are still required to inform their employer within 24 hours of and about the referral to quarantine and the reasons for it. Furthermore, employees must submit a quarantine referral certificate (issued by the NIJZ or the police in person, or by e-mail or regular mail within 72 hours) to their employer within three working days of receiving the certificate. Other than the aforementioned, PKP6 retains the provisions concerning quarantine set down under PKP5.
Please note that PKP6 includes new categories of employers that are not entitled to access the wage subsidy scheme for workers in quarantine or unable to work due to certain cases of force majeure. The following categories of employer do not qualify:
- direct or indirect beneficiaries of the budget of the Republic of Slovenia or a municipal budget, whose share of revenues from public sources in 2019 was higher than 70 percent;
- employers carrying on financial or insurance activities from the K group of the standard classification of activities and who had more than ten registered employees on the 13th of March 2020;
- foreign diplomatic missions and consulates, international organisations, representative offices of international organisations and institutions, bodies, and agencies of the European Union in the Republic of Slovenia.
PKP6 also includes a sliding wage subsidy payment scale for employees in home quarantine (i.e. ranging from 50% to 100% of their wages). The amount in each case is linked to the reason for referral to home quarantine (reasonably the same as under PKP5).
Wage subsidy payments to workers in the above cases (home quarantine and force majeure due to care leave, public transport or closure of border closures) shall be reimbursed in full by the state. Subsidies are paid monthly (in proportion or in full) on the last day of the month following the month in which the wage subsidy payment was made under this act. Employers are not entitled to a wage subsidy if wage subsidy payments have not actually been paid to qualifying employees.
The wage subsidy scheme is accessible via the website of the Employment Service of Slovenia ("ZRSZ"), within 8 days of the entry into force of the Act, if the scheme is being access for a period that predates the entry into force of the Act or within eight days of the employee's absence (when accessing the scheme after the entry into force of the Act). For employees in home quarantine, the application must be accompanied by a copy of the quarantine referral certificate and an employer statement to the effect that it is not possible to make arrangements for the employee in question to work from home. However, wage subsidy applications for force majeure due to care leave, public transport or border closures, must be accompanied by a statement from the employee outlining the circumstances that gave rise to the force majeure. For employees in home quarantine on return from a country on the red list, the application must also be accompanied by a statement from the employee outlining which of personal grounds provided for by law gave rise to the need to make the trip. If the order recognizes the employer's right to access the wage subsidy scheme, a wage subsidy scheme contract will be concluded with the ZRSZ, governing all mutual relations, obligations, and responsibilities.
Changes to the wage subsidy scheme for furloughed workers
The legislator has extended the possibility of furloughing individual employees until the 31st of January 2021. ZIUOPDVE adds to the existing list of beneficiaries that qualify for this scheme. It now includes employers that did not trade during 2019 but were registered in the companies register before or on 1st of September 2020, and their average monthly turnover in 2020 dropped more than 20% due to the pandemic (or the consequences of the pandemic) compared to the employer's average monthly turnover in the year 2020 up to the 31st of August 2020. Applications submitted by employers registered after the 1st of September 2020 will be rejected by way of a non-appealable order.
PKP6 stipulates that furloughed employees qualify for wage subsidy payments at a rate of 80% under Article 137/7 of ZDR-1. A wage subsidy payment may not be lower than the minimum wage. Wage subsidy payments from November 2020 until the employer/employee no longer qualifies for the scheme has also changed. It is now capped at the average monthly wage in the Republic of Slovenia (instead of being capped at the highest unemployment benefit) and may not exceed 80% of the value of the wage subsidy payment.
Employers who did not exceed the EUR 800,000.00 state aid cap (taking into account the amount that will be received by the end of eligibility under this Act) may apply for 100% wage subsidies. Applications for 100% wage subsidies, in addition to an assessment of the decline in turnover income and written employee furlough orders, must also be accompanied by a statement that they have not received in excess of EUR 800,000.00 in state aid under COVID-19 support measures. Employers must indicate in their applications to the ZRSZ whether they are seeking an 80% or 100% wage subsidy.
Wage subsidy scheme applications can be filed electronically with the ZRSZ within eight days of an employee being furloughed, namely no later than the 15th of January 2021. PKP6 stipulates that ZRSZ orders are non-appealable, however, an administrative dispute may be initiated. Last but not least, ZIUOPDVE also explicitly stipulates that employers cannot claim wage subsidies for furloughed employees during the notice period. The remaining provisions of the wage subsidy scheme for furloughed workers remain essentially unchanged.
The Act also introduces measures in the field of labour market regulation, namely that (in addition to statutory cases of suspension of the right to cash benefits) jobseekers are entitled to cash benefits if he/she concludes a fixed-term employment contract to substitute absent employees who are subject to measures (e.g. quarantine) to prevent the spread of COVID-19. This measure is valid until the 31st of December 2020, whereby the Government of the Republic of Slovenia may extend it for a period of six months by way of an order published in the Official Gazette. The Act also stipulates that employment that is not included in a personal progression plan is also considered suitable employment, which means that a person registered on unemployed persons register must immediately accept an offer of suitable employment. The measure is valid until the 30th of June 2021, with the possibility of a six-month extension (but no later than the 31st of December 2021) by way of Government order.
ZIUOPDVE also prescribes in detail the information to be included in work-from-home notices to the Labour Inspectorate of the Republic of Slovenia (notice must be given before an employee commences working from home). A work-from-home notice must contain the following information:
- employer's details (name, address, registration number and activity);
- details of the employee who is set to work from home (personal name, job title or type of work, with a brief description of the work to be performed, work assets and work equipment to be used by the employee, estimated duration, and estimated share of working time at home);
- the potential risk to the safety and health of the employee when working from home (the employer must state this in the notice).
Notices shall be submitted electronically, via the information system or the SPOT portal (Slovenian Business Point). Please note that employers that have already (this year) notified the IRSD of work-from-home arrangements and where the term of that arrangement under the notice has not yet expired, do not need to re-submit notices to the IRSD concerning work-from-home arrangements already in place (this exemption shall remain in place until the end of the year 2020).
Failure to notify the IRSD about a work-from-home arrangement is a fineable offense under ZDR-1.
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Law office Fabiani, Petrovič, Jeraj, Rejc d.o.o.