Implementation of the EU Directives on Work-Life Balance and on Transparent and Predictable Working Conditions: Romania

This report is designed to help companies to understand the requirements and how they have been implemented.

Implementation of EU Directive on Work-Life Balance (EU Directive 2019/1158)

Has the directive been implemented in the jurisdiction?

Yes.

What is the status of the implementation or draft implementation?

• Emergency ordinance no. 117/2022, for the amendment and completion of the Law on Paternity Leave no. 210/1999, entered into force on 29 August 2022;
• Emergency ordinance no. 57/2022, for the amendment and completion of Law no. 202/2002 regarding equal opportunities for and treatment of women and men and for the amendment of art. 3 paragraph 21 of the Government Emergency Ordinance no. 121/2021 regarding the establishment of measures at the level of the central public administration and for the modification and completion of some normative acts, entered into force on 05 February 2022;
• Law no. 283/2022, for the amendment and completion of Law no. 53/2003 on the Labour Code, as well as Government Emergency Ordinance no. 57/2019 regarding the Administrative Code, or carers leave, force majeure leave, flexible working arrangements, entered into force on 22 October 2022.
• Emergency ordinance no. 164/2022, for the amendment and completion of the Government Emergency Ordinance no. 111/2010 regarding leave and monthly allowance for raising children, initially planned to enter into force on 05 February 2023 (not yet in force).

What are the key changes for employers and employees?

1. Paternity leave (“Concediu paternal”)

• Fathers of new-born children can use this type of leave in order to care for them;
• The leave lasts 10 working days and can be extended by 5 more working days for fathers who have completed a child-rearing course;
• The period of paternity leave is included in the time spent in employment;
• If the employer does not grant paternity leave once it has been requested, a fine of between RON 4,000 and RON 8,000 can be applied.
• It is prohibited to dismiss employees during the paternity leave.
• The employer will pay the employee 100% of remuneration during the period of leave.
• At the end of paternity leave, the employees will benefit from any improvement in working conditions to which they would have been entitled had they not taken
  the leave.

2. Child-rearing leave (Concediu de crestere copil)

• This extends the non-transferable period of parental leave from at least 1 month to at least 2 months of the total leave period in the case of a parent who did not initially request this right, provided both parents meet the legal conditions (provision not yet in force).
• It ensures the employment conditions and salary rights the employee had at the beginning of the leave or acquired along the way are maintained until the end of the parental leave.

3. Carers’ leave (concediu de Ingrijitor)

• This is a new type of leave is granted to enable an employee to care for a family member or other person living in the same household who needs support/care as a result of a severe medical problem;
• The leave can be granted for maximum of 5 working days in a calendar year, upon the employee’s written request;
• Not granting this leave will lead to a fine for the employer of between RON 4,000 and RON 8,000.
• This type of leave is unpaid.

4. Force majeure leave

• The employee has the right to be absent from the workplace due to unforeseen situations, determined by a family emergency caused by illness or accident, which makes the immediate presence of the employee indispensable. This is provided that the employer is informed in advance and the time the employee is absent may be recovered in full.
• Force majeure leave amounts to 10 working days in a calendar year.
• The employer and the employee establish by mutual agreement how to recover the period of absence, within the limit of 10 working days.

5. Flexible working arrangements, additional rights

• The employer can establish individualised work schedules, which may have a limited duration, for all employees, including those who benefit from carer's leave, with their consent or at their request.
• Individualised work programmes are a flexible way of organising working time.
• The individualised work programme can function only in compliance with the provisions regarding normal working time and overtime.
• The employer must justify in writing any refusal of a request to benefit from an individualised work schedule within 5 working days of receiving the request.
• When the individualised work schedule has a limited duration, the employee has the right to return to the original work schedule at the end of the agreed period. The employee also has the right to return to the initial schedule prior to the end of the agreed period, in the event of a change in the circumstances that led to the individualised schedule being established.
• The flexible way of organising working time makes it possible for employees to adapt their work schedule, including remote work, flexible work schedules, individualised work schedules or part-time work schedules that lead to reduced work.

What are the main actions for HR departments in preparing for the changes?

• Review and revise internal labour documentation such as:
  • Internal regulation;
  • Templates of other documentation concerning factors such as consents to work overtime;
  • Other employment policies and practices that are applicable to employees in relation to their parental entitlements;
  • Application forms required to apply for new types of leaves/releases.
• Training to acquaint HR colleagues with the new rules.

Implementation of EU Directive on Transparent and Predictable Working Conditions (EU Directive 2019/1152)

Has the directive been implemented in the jurisdiction?

Yes.

What is the status of the implementation or draft implementation?

• Law no. 283/2022, for the amendment and completion of Law no. 53/2003 on the Labour Code, as well as Government Emergency Ordinance no. 57/2019 regarding the Administrative Code, or carers leave, force majeure leave, flexible working arrangements, entered into force on 22 October 2022.
• Order no. 2171/2022 of the Ministry of Labour and Social Solidarity, for the approval of the framework model of the individual employment agreement, entered into force on 09 December 2022.
• Law no. 172/2020, for the amendment and completion of Law no. 16/2017 regarding the posting of employees in the framework of the provision of transnational services, entered into force on 16 August 2020

What are the key changes for employers and employees?

1. Victimisation and additional associated rules

• Adverse treatment is now prohibited in cases where the employee files a complaint with competent public authorities regarding the breach of any legal rights (not only relating to discrimination, as in the past).
• Adverse treatment is also prohibited in relation to employees, trade unions and employee representatives who initiate complaints or any type of procedure with the purpose of ensuring the protection of rights regulated under the Labour Code;
• The right is enshrined for an employee who considers him or herself to be a victim as per the above . In this case, the employee may file a court complaint and request damages, the annulment of the adverse treatment and the reinstatement of the conditions as they were prior to victimisation. .

2. New information obligations relating to:

• Place of work, or in the absence of a fixed place of work, the opportunity for the employee to work in different places. In the event of a trip organised and paid for by the employer, whether the costs are covered upfront by the employer or are initially borne by the employee and reimbursed by the employer.
• Method and schedule of payments of base salary
  and other constitutive elements of remuneration evidenced separately.
• Normal duration of working time, hours per day and week, rules for overtime performance and compensation and the implementation of the shifts schedule.
• Duration and conditions of the probation period, if
  such exists.
• Professional training offered by the employer.
• The conditions under which the employer covers private medical insurance, occupational pension contributions/private pensions. Also, any other rights granted at the employer’s initiative that represent financial benefits in recognition of the employee’s professional services.
• The employer’s obligation to inform employees who are required to travel abroad about the country or countries where work is to be performed.

3. Probationary period

• It is now prohibited to enforce a new trial period if within a 12-month term, a new employment agreement is concluded between the same parties, for the same job position and with the same attributes.
• Following the probationary period, employees have the right to ask to be moved to a vacant position with more favourable working conditions if he/she has spent more than 6 months with the same employer.

4. Right of employees to have multiple
   employment agreements

• There is an express provision stating that the employee must ensure that there is no overlap between the working schedules when working under more than one employment agreement;
• There is also a prohibition in place against applying adverse treatment to employees with multiple employment agreements.

5. Additional evidence in case of dismissal

If an employee argues that he or she has been dismissed for reasons pertaining to: the enforcement of the information obligation; the enforcement of employees' rights during the trial period; the trial period for fixed-term agreements; taking carer leave; or absence due to force majeure or paternal leave, then they are entitled to ask the employer for additional grounds in writing upon which the dismissal is based.

6. New contents of the internal regulation

• New sections need to be included in the employer’s internal regulation that contain:

1. Information regarding the notice period;
2. Information on the general training policy, if
   such exists.
3. Information obligation for employees posted abroad

Romanian companies that post their employees to other EU countries or Switzerland have the obligation to inform the employee in writing and prior to the posting, about:

1. The constituent elements of the remuneration package to which the worker is entitled, in accordance with the legislation applicable in the host Member State, and their amount;
2. The total amount of remuneration granted to the employee during the secondment period, with the secondment-specific allowance clearly highlighted, when it is granted;
3. The expenses actually generated by the posting, such as transport, accommodation and meals, as well as the methods of providing or reimbursing them, respectively the method of providing transport, accommodation or meals, as the case may be;
4. The link to the unique official national website created by the host member state in accordance with art. 5 para. (2) of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on ensuring compliance with the application of Directive 96/71/EC on the posting of workers in the provision of services and amending Regulation (EU) no. 1.024/2012.
5. Companies must also include the information on working abroad that is listed in the Romanian Labour code (the country or countries, as well as the duration of the work period to be performed abroad, the currency in which salary rights will be paid, as well as the methods of payment, benefits in money and/or in kind related to carrying out the activity abroad, likely climatic conditions, the main regulations of the labour legislation of that country, the customs of the country, the non-compliance with which would endanger the worker’s life, freedom or personal safety, the conditions for the repatriation of the worker etc.).

Providing any posted employees with the above information is not mandatory if the duration of the secondment is less than or equal to 7 consecutive days.

What are the main actions for HR departments in preparing for the changes?

• Review:
• The template used for individual employment agreements for new employees;
• The internal regulation;
• Secondment letters.

By Florentina Munteanu, Partner, and Anca-Gabriela Ilie, Senior Managing Associate, Reff & Associates | Deloitte Legal Romania

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