- Law no. 53/2003 regarding the Labor Code (the “Labor code”);
- Law no. 81/2018 regarding the regulation of telework activity (the “Teleworking law”);
- Emergency Ordinance no. 192/2020 for the amendment and completion of Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, as well as to amend letter a) of art. 7 from Law no. 81/2018 on the regulation of telework activity (the “GEO”);
- Guide on working at home / telework / individualized work schedule issued by the Labor Inspectorate on November 6, 2020 (the “Guide“);
- Decision no. 52/2020 on the establishment of additional measures necessary to be applied to prevent and combat the effects of the COVID-19 pandemic issued by the National Emergency Committee (the “Decision“).
According to art. 16^1 of the Labor Code, workplace means the place where the employee carries out his activity, located in the parameter provided by the employer, natural or legal person, at the headquarters or at branches, representations, agencies or work points belonging to him.
The workplace is one of the mandatory elements of the individual employment agreement (“IEA”), along with:
- identity of the parties;
- the employer’s headquarters / domicile;
- position / occupation;
- job description;
- the criteria for evaluating the professional activity of the employee;
- job-specific risks;
- the date on which the agreement is to take effect;
- duration of the agreement;
- duration of rest leave;
- the conditions for granting notice by the parties and its duration;
- base salary;
- working hours;
- indication of the collective employment agreement (“CEA”);
- duration of the probationary period.
According to the Guide, in addition to the above elements, the IEA / telework clause addendum will also include:
- the express specification that teleworker / employee works in telework / home office regime;
- the period and / or days in which the teleworker / employee carries out his / her activity in telework / home office regime;
- the place / places of carrying out the telework activity, agreed by the parties;
- the program in which the employer is entitled to verify the employee’s activity and the concrete way of performing the control;
- the way of highlighting the working hours provided by the teleworker;
- the responsibilities of the parties agreed according to the place (s) of the telework activity, including the responsibilities in the field of occupational safety and health;
- the obligation of the employer to ensure the transport to / from the place of telework / home office of the materials that teleworker / employee uses in his activity, as the case may be;
- the measures taken by the employer so that the teleworker is not isolated from the rest of the employees and which ensures that he has the opportunity to meet with colleagues on a regular basis;
- the employer’s obligation to inform the employee of the provisions of the legal regulations, of the applicable CEA and / or the internal regulations regarding the protection of personal data, as well as the employee’s obligation to comply with these provisions;
- the conditions under which the employer incurs the expenses related to the telework activity.
The work place is an element that can in principle be changed only with the agreement of the parties, except for the change of work place by delegation or secondment, which can be temporarily disposed unilaterally by the employer.
The teleworking law defines the telework activity as the form of work organization through which the employee, regularly and voluntarily, fulfills his duties specific to the position, occupation or profession he holds, in a place other than the work place organized by the employer, at least one day per month, using information and communication technology. The person who works in telework regime is called a teleworker and has the same rights as employees who work at the employer’s headquarters.
The telework regime involves carrying out the activity at the employee’s home or in a joint work space (coworking space) chosen by the teleworker and employer, the home office regime involves carrying out the activity strictly at the employee’s home, and the individualized work schedule involves staff organization in groups so as to start / end the activity at least one hour apart.
As an expression of the provisions of the Labor Code, telework is performed based on the agreement of the parties and is expressly provided in the IEA once it is concluded for newly hired staff or by addendum to the existing IEA for others employees.
If until recently, telework was an option for employers and employees, now the Ordinance has imposed the obligation to work in home office or in telework regime, where the specifics of the activity allow it.
Also, the same Ordinance imposes the obligation to organize the work schedule so that the staff is divided into groups to start or finish the activity at a difference of at least one hour, in charge of employers in the private system, central and local public authorities and institutions, autonomous utilities, companies, national companies and companies in which the share capital is wholly owned by the majority state or by an administrative-territorial unit, with a number of more than 50 employees.
During the activity of telework / home office regime, the employer has the right to verify the activity of the teleworker / employee.
Also, according to art. 9 para. (1) and (2) of the Teleworking Law, the following institutions have access to places of activity in the telework regime:
- the representatives of the trade union organizations at unit level or the representatives of the employees for the application and verification of the working conditions of the teleworker;
- the representatives of the competent authorities for verifying the application and compliance with the legal requirements in the field of safety and health at work.
Articles 7-8 of the Teleworking Law establish specific obligations for this regime, both for the employer and for the teleworker, and the IEA / addendum must be drafted in such a way as to include them.
Specific obligations of the employer:
- to provide the means of information and communication technology and / or secure work equipment necessary for the performance of the work, unless the parties agree otherwise;
- to install, inspect and maintain the necessary work equipment, unless the parties agree otherwise;
- to ensure conditions for the teleworker to receive sufficient and adequate training in the field of occupational safety and health, in particular in the form of information and work instructions specific to the place where the telework activity takes place.
Specific obligations of the teleworker:
- to inform the employer about the work equipment used and the conditions existing at the places where the telework activity takes place;
- allow the employer access, as far as possible, to establish and implement occupational safety and health measures required under the terms of the IEA, or to investigate events;
- not to change the safety and health conditions at work from the places where they carry out the telework activity;
- use only work equipment which does not present a danger to his safety and health;
- to carry out his activity in compliance with the provisions regarding the obligations of the workers, as they are provided in the Law on safety and health at work no. 319/2006, with subsequent amendments, as well as in accordance with the clauses of the IEA;
- comply with the specific rules and restrictions laid down by the employer regarding the internet networks used or the use of the equipment provided.
Article written by Alina S., Managing Partner at Advice Accounting – one of the most experienced Accounting & Legal companies in Romania.