Pursuant to the Decree on Organizing the Work of the Employers during a State of Emergency (“Official Gazette of the RS” No. 31/2020), each employer is obliged to enable employees to perform work outside the premises of the employer (working remotely or working from home), at all workplaces where this type of work organization is possible. Equal obligation is foreseen also in the Serbian Labor Law (“RS Official Gazette”, No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – US Decision, 113/2017 and 95/2018 -aut. interpretation) as part of the employer’s obligation to provide employees with safety and health at work (Article 12. of the Labor Law) and in accordance with the Law on Health and Safety, (“Official Gazette of RS”, No. 101/2005, 91/2015 and 113/2017).
From the employees’ point of view, protection of safety and health at work is set not only as an employee’s right, but also as a duty – an obligation to comply with the prescribed measures of protection, so as not to endanger their own, or the safety and health of other employees or other persons.
In the event that the employees’ life and health are endangered, as are in the situation where danger of spreading of deadly virus is real or imminent, the employer is obliged to draft and enact a decision on work from home.
This decision is rendered by the competent authority at the employer, that is, the person designated by the law or the general act of the employer, or the person they authorize (in practice, this is the director), and in case of an employer who is an entrepreneur, this decision is made by the entrepreneur himself or the person he empowers. The authorization to pass this decision must be given in writing.
Compulsory elements of this decision are defined working hours and the manner of employer’s supervision of the employees (with regards to the organisation of work from home, this could be communication with employees via telephone, e-mail, obligation to prepare daily work reports, installing a computer program which would record the employees’ activities, etc.). At the same time, the employer is obliged to keep records of employees who work outside the employer’s premises.
In order to determine in more detail the conditions and the means of work from home (and to prevent employees from turning this kind of organization of work into a vacation), it is desirable within this decision to envisage the obligation of employees to be available to the employer by telephone and internet connection during the scheduled working hours, and in this regard, to ensure unhindered connection during working hours, and to be able to interrupt work and leave the workplace during working hours only after having obtained prior authorization from the employer.
In the event that the employee does not perform work tasks or does not respect work discipline, the employer may terminate his / her employment contract, or impose another disciplinary measure adequate in these circumstances, regardless of the fact that the employee performed work from home.
It is also advisable to predict the validity of this decision – if the decision provides that it will be valid for a certain period of time, or during the state of emergency in the country, when this period is ceased, the decision to organize work from home is no longer valid (due to its expiration or the state of emergency termination) and it is not necessary to make a new decision in which this circumstance will be stated.
The decision to organize work from home is posted on the employer’ s notice board. Given the need for exigent response in a state of emergency, the decision shall take effect immediately. In case there is a need for modifications of this decision (for example, in case it is necessary to extend its validity, if it has expired), they are made in a form of an annex, which has the same legal force as the decision, and it changes / supplements specific provision(s) of the decision. Given the circumstances of the case (employees perform work outside the premises of the employer), it is possible to deliver the annex to employees via e-mail.
When state of emergency ceases to be in force, which would naturally lead to redundancy of the need to organize work at home, a new decision may be adopted and implemented, which would state that the reasons for organizing work from home have ceased to exist and determine that the employees shall return to work at the employer’s premises, and that the rights and obligations arising from the employment relationship that existed before the state of emergency shall continue their existence.
If the employer, due to the nature of his business activity, is unable to organize remote work or work from home, it is necessary to adjust his business to the state of emergency as follows:
- to arrange work in shifts, so that as few employees as possible work simultaneously in a single space indoor, if this could be organized without requiring additional resources;
- to enable all business meetings to be held electronically or by other appropriate means (video link, video call, etc.);
- to postpone official travels in the country and abroad, in accordance with the decision of the competent authority on the ban, i.e. temporary restriction of entry and movement;
- to provide all hygiene measures to ensure the protection and health of employees and a sufficient amount of protective equipment for employees in direct contact with clients or sharing a multi-person workspace.
By Ivana Cvetkovic Diafa, Senior Associate, and Miomir Stojkovic, Principal, Stojkovic Attorneys