In response to the emergency situation arising from the spread of COVID-19, the National Council of the Slovak Republic has, since the outset, passed several laws amending and supplementing Act No. 461/2003 Coll. on Social Insurance, as amended, the Labor Code, and Act No. 5/2004 Coll. on Employment Services and on Amendments and Supplements to Certain Acts. The changes primarily concern adjustments to entitlement to sick pay, nursing pay, and accident allowances, deferral of contribution payments, and the extension and renewal of fixed-term employment contracts. In the following article, we therefore present the current legal framework governing labor relations.
The measures adopted, pursuant to Section 250b of the amendment to the Labor Code, apply during a state of emergency, a state of emergency, or a state of exception, and for two months following the lifting of the state of emergency (or state of emergency or state of exception).
Employee Rights
An employee who, during the duration of an emergency situation, state of emergency, or state of exception declared in connection with COVID-19 (hereinafter referred to as the “crisis situation”) is recognized as temporarily unable to work due to a quarantine measure or isolation order, provided that they have no income from employment, are entitled to sick pay. The entitlement arises from the first day of temporary incapacity for work (i.e., not from the 11th day as is the case in other situations, where the employee is entitled to income compensation for the 1st through 10th days of temporary incapacity for work). The amount of sick pay is 55% of the daily assessment base. If an employee’s entitlement to sick pay continues as of the date the crisis situation ends, they are entitled to sick pay even after its conclusion, provided they continue to meet the prescribed conditions.
An employee, within the meaning of Section 293er of the Social Insurance Act, provided that they have no income from employment, are entitled to nursing allowance, effective from the first day of the need for personal and full-time nursing or personal and full-time care, and this entitlement ceases on the day the need for such nursing or care ends, if the employee:
a) personally and full-time cares for a child until the age of 16, whose health condition, as confirmed by the relevant physician, necessarily requires care by another natural person or
b) personally and full-time cares for a child until the child reaches the age of 11, or until the child reaches the age of 18 in the case of a child with a long-term adverse health condition, if:
- the child has been ordered to undergo quarantine or isolation,
- the preschool facility or social services facility where the child receives care, or the school the child attends, has been closed by decision of the competent authorities or has been subject to a quarantine measure, or
- the individual who otherwise cares for the child has fallen ill, has been ordered to undergo quarantine or isolation, or has been admitted to institutional care at a healthcare facility and therefore cannot care for the child or
c) cares for a direct relative, sibling, spouse, or parent of a spouse, if the social services facility where such a person receives social services on an outpatient or residential basis has been closed by decision of the competent authorities or quarantine measures have been ordered there or
d) personally cares for a child on a full-time basis, if during the crisis situation a month has elapsed,
- in which the child reached the age of 3,
- in which the child reached the age of 6, in the case of a child with a long-term adverse health condition,
- in which the child ceased to be a child with a long-term adverse health condition, if the child is younger than 6 years of age,
- in which the child reached the age of 6, if the insured person was entrusted with care replacing parental care based on a decision by the competent authority, provided that 3 years have not elapsed since the first decision of the competent authority became final, on the basis of which the child was placed in the care of the insured person as a substitute for parental care,
- in which three years have elapsed since the first decision of the competent authority took effect, on the basis of which the insured person was entrusted with the care of this child as a substitute for parental care, provided that the child is under 6 years of age.
A social services facility in which the child is provided with care is considered closed based on a decision by the competent authority even after its opening if:
- the child’s legal guardian does not express interest in having the child cared for in this facility due to concerns about the child’s health, or
- the child cannot be cared for in this facility due to capacity constraints.
A social services facility that provides social services on an outpatient or residential basis (in connection with the care of a first-degree relative) shall be deemed closed by decision of the competent authority even after its opening if:
- this individual or their legal representative does not express interest in receiving social services due to concerns about their health, or
- social services cannot be provided to this individual due to capacity constraints.
The amount of the nursing allowance is 55% of the daily assessment base. The nursing allowance is paid only once for the same period of personal and full-time nursing/care for one or more individuals, and only to one insured person. Payment of the nursing allowance is also suspended at the recipient’s request. An employee who has been granted nursing allowance is required to prove their entitlement to the payment of nursing allowance by the end of the calendar month through a sworn statement specifying the days on which they personally and full-time nursed or cared for the person(s) in question. Preschools and social service facilities provide the Social Insurance Agency with the required data to verify that the conditions for entitlement have been met (first name, last name, birth number, and the period during which the child was enrolled in the relevant facility). Entitlement to sick pay arises regardless of whether the school or preschool facility is private or public.
A significant change introduced by the amendment also relates to the payment of insurance premiums. An employee is not required to pay health insurance premiums, pension insurance premiums, and unemployment insurance premiums from the first day of the need for personal, full-time care or supervision of a child, until such care or supervision is no longer needed. The employee’s mandatory health insurance is not interrupted during this time.
The application for nursing allowance is submitted using the form published on the Social Insurance Agency’s website (it is sent by email/post/by placing it in the drop box at the building entrance or by phone). The competent branch of the Social Insurance Agency is the one corresponding to the employer’s registered office (in the case of self-employed persons, it would be the branch corresponding to their permanent residence).
It is worth noting here that in connection with the planned reopening of preschool facilities and schools for first-grade classes, the child’s legal guardian who has not expressed an interest in the child’s participation in the ongoing educational process at a preschool facility or school due to concerns about the child’s health—despite the fact that the preschool facilities or school are open—is not entitled to sick pay.
In connection with the payment of insurance premiums, it is also necessary to note that an employee who is recognized as temporarily unable to work during a crisis situation and who takes leave or performs work from home during this period is not exempt from the obligation to pay sickness insurance premiums, pension insurance premiums, and unemployment insurance premiums during the period in which they are deemed temporarily unable to work.
In the case of contributions paid by employers, the law authorizes the government to issue a regulation establishing a period for which contributions are to be paid by a due date other than that required by law and to specify such a date. In connection with the above, employers and self-employed individuals whose net turnover or income from business and other self-employment activities has decreased by 40% or more as a result of the emergency situation may request a deferral of the due date for contributions for December 2020 and January 2021 until June 30, 2021 using the form available in electronic or paper format on the Social Insurance Agency’s website. This option applies to:
- employers regarding the portion of contributions paid by the employer. The option to defer contributions therefore does not apply to the portion of premiums paid by the employer on behalf of the employee, for which the original due dates remain in effect,
- mandatorily insured self-employed persons (SZČO).
Similarly, the due date for already deferred contributions for the months of March, May, June, and July has been extended from December 31, 2020, to June 30, 2021.
In connection with the spread of COVID-19, the eligibility for accident benefits has also been expanded. Employees who are recognized during the crisis as temporarily unable to work due to COVID-19 -19 and for whom the employer confirms that the COVID-19 infection occurred at work, where there is demonstrable contact with the disease or with infectious material, are entitled to an accident allowance amounting to 25% of the daily assessment base.
High school students who have suffered a work-related injury or contracted an occupational disease during practical training in accordance with a special regulation, as well as college students who have suffered a work-related injury or contracted an occupational disease during practical training or professional practice in accordance with a special regulation, as well as other persons under Section 17(2) of the Social Insurance Act (volunteer soldiers, reserve soldiers, members of volunteer fire departments, Red Cross volunteer paramedics, volunteer members of mountain rescue services, a person assisting in an accident or natural disaster), if, during a crisis situation, they are recognized as temporarily unable to work due to COVID-19 that arose while performing the relevant activity, where there is demonstrable contact with this disease or with infectious material as part of this activity. In such a case, the amount of the accident allowance is 25% of the product of the general assessment base for the calendar year two years preceding the calendar year in which the entitlement to the accident allowance arose, and the number 365.
Legal Options for the Employer
▬ Obligation to Excuse an Employee’s Absence from Work
Pursuant to the amended provision of Section 141(1) of the Labor Code, in the event of a significant personal impediment to work, the employer shall excuse the employee’s absence from work during their temporary incapacity for work due to illness or injury, quarantine, personal and full-day care of a sick family member, personal and full-day care for a natural person under the Social Insurance Act, and during the period when a person who otherwise cares for a child under the age of ten underwent an examination or treatment at a healthcare facility that could not be arranged outside the employee’s working hours. During this time, the employee is entitled to sick leave (DPN, quarantine) or nursing leave (in the case of nursing/caring for a family member). The employee is thus not entitled to wage compensation unless a special regulation provides otherwise. Pursuant to Section 141(3) of the Labor Code, an agreement between the employer and the employee regarding the provision of paid leave, which the employee will make up later, is also an option. However, these must be obstacles on the employee’s part, which the employer cannot decide unilaterally.
▬ Working from Home
Given the continuing uncertainty as to whether, during the period of validity of measures to prevent the spread of communicable diseases or measures to protect public health ordered by the competent authority, an employer may unilaterally order so-called home office work even without the employee’s consent, the amended Section 250b(2) of the Labor Code expressly establishes the employer’s right to require an employee to work from home if the agreed-upon type of work permits it. At the same time, the amendment established the employee’s right to perform work from home if the agreed type of work permits it and there are no serious operational reasons on the employer’s part that would prevent work from home.
▬ Reassignment to Different Work
According to Section 55(1) of the Labor Code: ,,(1) To perform work of a different type or at a different location than agreed in the employment contract, an employee is obligated only in exceptional cases, namely in the cases set forth in paragraphs 2 and 4.” Paragraph 2(c) subsequently provides: ,,the employer is obligated to reassign the employee to different work if this is necessary according to a medical opinion or a decision by a public health authority in the interest of protecting the health of others from communicable diseases (hereinafter “quarantine measure”).
The reassignment of an employee to other work or to another location is possible even without the employee’s consent. For the purposes of the Labor Code, “location” within the meaning of Section 43(1)(b) refers to the place of work, which may be defined as a municipality, a part of a municipality, or another specified location (i.e., in the sense of a geographical designation, not as a synonym for “position” in the sense of “job role”). Therefore, in light of the ongoing debates regarding the employer’s right to order an employee to work from home even without the employee’s consent, it can be concluded that, pursuant to Section 55(1) of the Labor Code, an employer is entitled to order an employee who has been placed under mandatory quarantine provided their health condition permits it, to work from home even without their consent, as this would not constitute a procedure under Section 52(5) of the Labor Code, but rather a procedure within the meaning of Section 55(1) of the Labor Code. For the period of reassignment to other work, if the employee earns a lower wage per hour worked than when performing work under the employment contract, he is entitled, pursuant to Section 125(1) of the Labor Code, to a supplement of at least the amount of his average earnings prior to the reassignment, for a maximum of 12 consecutive months from the date of reassignment.
▬ Taking Vacation
The employer may determine when an employee takes vacation; pursuant to Section 111(1) of the Labor Code, the employer’s operational needs and the employee’s legitimate interests must be taken into account. The employer determines the use of vacation time after consultation with the employee in accordance with a vacation schedule established with the prior consent of employee representatives. If necessary for operational reasons, pursuant to Section 111(2) of the Labor Code, the employer may, upon agreement with employee representatives, schedule a collective vacation period. Under the amendment, the employer is required to notify the employee of the vacation schedule at least 7 days in advance (i.e., no longer 14 days), and in the case of unused vacation under Section 113(2) of the Labor Code
(i.e., the employee cannot take leave in the calendar year because the employer did not schedule it or due to obstacles to work on the employee’s part) at least 2 days in advance. This period may be shortened with the employee’s consent. However, the taking of leave is deducted from the basic annual entitlement.
In connection with extraordinary measures against the spread of COVID-19, an employer may not unilaterally order an employee to take unpaid leave or force them to take unpaid leave. An agreement with the employee is required for taking unpaid leave.
In connection with the taking of leave as part of measures against the spread of COVID-19, the Slovak government plans to allow employers to order collective leave without the prior consent of employee representatives, provided that the employer informs them of the order for collective vacation at least 3 days before it begins. However, the proposed measure has not yet been adopted.
▬ Change in work shift schedule
The employer may also change the work shift schedule; pursuant to Section 250b(3) of the Labor Code, the employer is required to notify the employee of the work schedule at least two days in advance, unless the employer and the employee agree on a shorter notice period (i.e., even on a day-to-day basis), with effect for at least one week. The employer may, provided the conditions are met in individual cases:
1. schedule working hours unevenly across individual weeks; however, the employer must first reach an agreement with employee representatives; if there are no such representatives, an agreement with the employee(s) themselves is sufficient. The employer may do so if the nature of the work or operational conditions do not allow for an even distribution of working hours across individual weeks. It is also important that, in the case of an uneven distribution of working hours, the average weekly working hours must not exceed the established weekly working hours over a 4-month period;
2. distribute working hours unevenly across individual weeks for a period longer than 4 months (for a maximum of 12 months), only in the case of activities where there is a varying need for work throughout the year and the employer is authorized to schedule working hours in this manner pursuant to a collective agreement or by agreement with employee representatives;
3. introduce a working time account, provided that the employer is authorized to do so under a collective agreement or an agreement with employee representatives, and the agreement to introduce the working time account must be in writing and specified in the collective agreement or agreement with employee representatives.
▬ Adjustment of Working Conditions
If an employee is not working from home and, during an emergency situation, the employer allows or requires the employee to work at the workplace, the employer is obligated to take all measures to ensure the protection of the life, health, and safety of employees at the workplace. Such measures include, for example, the possibility of canceling business trips, providing employees with protective masks, respirators, protective gloves, disinfectants, and the like.
However, pursuant to the newly enacted Section 39i of Act No. 124/2006 Coll. on Occupational Safety and Health and on Amendments to Certain Acts, the employer is not obligated to familiarize the employee with legal regulations and other regulations existing and foreseeable hazards and risks, or the prohibition on entering a designated area, if, during a crisis situation, this obligation cannot be objectively fulfilled; however, failure to fulfill this obligation must not immediately and seriously endanger the life and health of the employee, and the employer is obligated to subsequently inform the employee of the relevant facts as soon as possible, no later than one month from the date the crisis situation is lifted.
In connection with online debates regarding an employer’s right to take the temperature of employees before they enter the workplace, we note that as of March 30, 2020, it is permissible to take the body temperature of employees and other individuals before they enter all factories, stores, and other places where people gather. Originally, this measure was permissible only to a limited extent due to the protection of employee rights; is now, under the newly adopted measure aimed at stopping the spread of COVID-19, applicable to all employees as well as other individuals before entering the employer’s premises, as a preventive measure without reasonable suspicion of infection.
▬ Failure to Assign Work to an Employee
This constitutes an obstacle to work on the part of the employer, faced, for example, by business entities that, pursuant to Measure No. 2595 of the Public Health Authority of the Slovak Republic, were ordered to close their operations for the duration of the state of emergency (e.g., bars, cultural facilities, wellness centers, water parks, etc.) or cases where the employer is forced to halt production (e.g., due to a failure to deliver materials).
Such an employer is unable to assign work to the employee in accordance with the employment contract, and pursuant to the amended provision of Section 250b(6) of the Labor Code, the employee is entitled to wage compensation amounting to 80% of their average earnings, but not less than the minimum wage.
This does not apply if the employer has defined, in a written agreement with employee representatives (i.e., a trade union body, an employee council, or an employee representative), serious operational reasons for which it cannot assign work to employees; in which case it constitutes an obstacle to work on the employer’s part, for which the employee is entitled to wage compensation in the amount specified by the agreement, but at least in the amount of 60% of their average earnings. The agreement cannot be replaced by a unilateral decision of the employer or by an agreement with a specific employee or employees.
▬ PExtension of a fixed-term employment relationship
(1)
A fixed-term employment relationship that is scheduled to end during a state of emergency, state of emergency, or state of exception declared in connection with the COVID-19 disease, or within two months after their revocation, and for which the conditions for its extension are not met, may be extended once and by a maximum of one year. If a fixed-term employment relationship has already ended at that time and the conditions for its renewal are not met, it may be renewed once, for a maximum of one year, during a state of emergency, state of emergency, or state of exception declared in connection with COVID-19 or within two months after their revocation.
However, the employer is required to discuss the extension or renewal of a fixed-term employment contract with employee representatives in advance. If the employer fails to fulfill this obligation and nevertheless extends the employment relationship with such an employee or renews it, the employment relationship is deemed to have been concluded for an indefinite period.
Employment Services Act
The amendment to the Social Insurance Act also affected Act No. 5/2004 Coll. on Employment Services and on Amendments to Certain Acts. Under the amended provisions, without the threat of penalties, the deadline for fulfilling certain obligations of natural and legal persons arising from the Employment Services Act has been postponed from March 31, 2020, to June 30, 2020
(e.g., an employer’s obligations regarding the employment of persons with disabilities, penalties for failing to meet the mandatory quota for employing persons with disabilities, etc.). Pursuant to Section 72al of the aforementioned Act, citizens who wish to be registered as job seekers may submit an application electronically even without a qualified electronic signature, as well as by submitting a paper application delivered by mail pursuant to Section 72aq of this Act.
In order to strengthen employment service tools, the scope of active labor market measures has been expanded, the purpose of which is to increase employment through the registration of job seekers and job vacancies, counseling services, education and training for the labor market, or the provision of subsidies (e.g., a subsidy to support job retention). Under the amendment, the following are also considered active labor market measures:
~ projects to support job retention (including those involving the performance or operation of self-employment activities) and to support the retention of employees in employment in connection with the declaration of a state of emergency, a state of emergency or a state of exception and the elimination of their consequences, which are approved by the Ministry or the Central Office following approval of the conditions by the Government of the Slovak Republic and implemented by the Central Office or the Office; for more details, see here
~ pilot projects to test new active labor market measures, which are approved by the Ministry and implemented by the Central Office
~ pilot projects/programs to support the development of regional or local employment, which are approved by the headquarters and implemented by the office.
Through these measures, it will be possible to implement projects to compensate employers who retain jobs, even despite being required to suspend or limit their operations due to the adoption of emergency measures, or if they were forced to do so to protect the health of their employees or due to a decline in orders.
In addition to assistance provided by the state, support from European funds will play an irreplaceable role in supporting the maintenance and resumption of business activities. We discuss this topic in more detail in the article State Compensation in Connection with Measures Against the Spread of the COVID-19 Coronavirus.
Based on the aforementioned measure, which introduced 80% wage compensation paid by the state in the event of an obstacle to work pursuant to Section 142(3) of the Labor Code, 3 of the Labor Code, it is evident that the Government of the Slovak Republic is striving to find optimal solutions to preserve jobs while simultaneously supporting the continued operation of the employer’s business activities. A similar measure, known as Kurzarbeit, is also applied in Austria, the essence of which lies in reducing employees’ working hours, with the loss of income covered by the state. In exchange for the state assuming these costs, the employer commits to not laying off its employees. Typically, the Kurzarbeit measure is implemented for 3 months with the possibility of extension. In Austria, as in Germany, this measure has repeatedly helped mitigate the effects of the financial crisis (for example, in 2012/2013 and 2019) and has also proven effective in cases where an industry was heading toward recession.
In connection with other measures adopted to mitigate the negative effects of the emergency situation on the business environment, we also draw your attention to our other articles:
Extension of the deadline for filing tax returns and tax obligations.
Our law firmis ready, in cooperation with our partners, to provide you with legal and other professional advice and services regarding the measures adopted by the state, their consequences, as well as possible solutions and the use of assistance from both state and European funds.
Given the rapidly evolving nature of the emergency situation in the Slovak Republic, further measures in the area of labor relations can be expected. We will therefore continue to monitor the situation and update this article with the latest information. Finally, we would also like to draw your attention to the launch of an info line by the Ministry of Labor, which both employees and employers can contact with questions regarding labor relations in light of the current situation https://www.employment.gov.sk.
