Teleworking during the state of alert

As of 15th of May, the state of emergency has been replaced by the state of alert at least for the next 30 days, for reasons generated by the Covid-19 pandemic. This is particularly important in relation to teleworking because, as per the current enactments, all employers have the obligation to organize themselves so that the work to be performed from employees’ home, provided that the activity allows it.

One particular legal provision is relevant in the context of teleworking during the state of alert, namely art. 17 of Law 55/2020 on some measures for prevention and combating the effects of Covid-19 pandemic, published today into the Official Gazette. According to this provision, during the state of alert, the employer may provide (“dispune” in Romanian language) with the employee’s consent, the performance of teleworking or of work from domicile, the change of workplace or of his attributions. At least in relation to teleworking, this new provision is ambiguous and gives rise to interpretations considering that the mechanism whereby the employer “provides” and the employee “consents” on teleworking is not clearly defined here. By contrast, this mechanism is clear into the Law 81/2018 on teleworking and means specific clauses agreed by the parties into the employment contract/addendum to employment contract.

The question is how this measure will be implemented by employers who need to continue the teleworking activity during the state of alert.

The safest approach is, of course, to obtain the employees’ handwritten signature by concluding addenda to the employment contracts for extending the teleworking activity during the state of alert. Addenda should be concluded also by employers who already have addenda on teleworking but with a different working schedule (for example, a few days per month of teleworking), for adjusting such schedule and for providing the time frame on performance of teleworking exclusively from employee’s home.

Although there are means for obtaining the teleworkers’ handwritten signature on the addenda – scanned copy by e-mail, original document by courier – this is burdensome for employers with a high number of teleworkers, considering that the employees are already performing their tasks outside the employer’s office, so their handwritten signature is difficult to obtain.

Art. 17 of Law 55/2020 might be interpreted that no addendum on teleworking is necessary during the state of alert and the above interpretation may be sustained by legal arguments:
• Law no. 55/2020 does not expressly provide the parties’ obligation to conclude an addendum on teleworking.
• The current legislation on teleworking already provides the obligation to have specific clauses into the teleworker’s employment contract; thus, providing the same legal obligation into Art. 17 of Law 55/2020 would be superfluous; this article might be interpreted as a provision which departs from the existing labour legislation (for example, it also provides that during the state of alert, the employer may provide the change of the employee’s workplace with the employee’s consent, whilst, as per the Labour Code, the employer may unilaterally change the employee’s workplace in certain cases.)
• In lack of an express provision, the employee’s consent provided by art. 17 of Law 55/2020 might be implicit (for example, in case of teleworking, the employee’s failure to express, within a specific time frame, his option to work from employer’s office).

Considering the above interpretation, one practical solution for those employers that, for various reasons, do not initiate the signing of the above addenda, is to provide the extension of the teleworking activity during the state of alert based on the employer’s unilateral decision conditioned by employee’s consent: thus, the employer should decide that the teleworking activity continues during the state of alert in the same conditions as the ones already established during the state of emergency and that this measure is not applicable to those employees who inform the employer within a specific time frame provided by decision (e.g. a specific number of days as of communication of the decision) on their option to work from the office. If the latter have already in place addenda on teleworking (for example, a few days of teleworking per month), their work from the office during the state of alert will be in line with the existing addenda. The risk of fines is significantly lower for employers who already have addenda on teleworking concluded with their employees (for example, addenda for a few days of teleworking per month), because in their case such risk is related only to the temporary amendment by employer’s unilateral decision of the teleworking duration.

Although the above interpretation is debatable, at least it offers to employers with a large number of teleworkers that do not envisage, for various reasons, to currently implement the above addenda, a leverage in negotiation with the labour authorities in case of a labour audit, until additional clarifications on this matter are provided by the legislator or by the labour authorities. Nevertheless, to be on the safe side, the employer should seek to get as soon as possible the point of view of the local labour authorities on this matter.

Anyhow, irrespective of the above interpretation, the employers that envisage to continue the teleworking activity after the expiry of the state of alert should start preparing the above addenda. One practical solution for arranging the signing process of such addenda would be to send the document by e-mail bearing the employer’s signature (i.e. handwritten or electronic signature) and to receive back a scanned copy with the employee’s signature or at least the employee’s written confirmation that he agrees with the addendum. The originals will be communicated later, either by courier or when the employee returns to the office.

Authors: Ileana Lucian, Silvia Dumitrache