The 2019-2020 pandemic of novel coronavirus disease (Covid-19) caused by the SARS-CoV-2 virus is a material risk to human health - directly to vulnerable groups and indirectly, via the overwhelming effects it risks having on healthcare systems. The epidemic and the necessary responses to it are also a material risk to the economy and to livelihoods and businesses.
Employers are encouraged to participate in public health measures to limit the spread of the disease as part of a multi-pronged response.
In Bulgaria, this is further situated in the context of a national emergency which was declared on March 13, 2020.
What is mandated by government authorities or is prudent is evolving and you should seek specific advice. Below are a list of issues specific to employment and our initial comments on these which we felt may be helpful information (but not advice). We have already begun advising clients on the consequences of Covid-19 and are well-equipped to do so – please email us on email@example.com if you require further assistance.
Purely legal issues will also mix in with questions of reputation and corporate social responsibility (CSR) which may modify your approach. In addition, input from your usual Health & Safety at Work consultant will be highly relevant and we are well-used to advising alongside such consultants on the legal aspects.
(1) Are employees obliged to disclose themselves as potentially higher infection risks?
(2) Can it be employer policy to demand disclosure from employees?
(3) What obligations of confidentiality and data protection in respect of infection-related information do employers have?
In our view, there is no right for employers to force the disclosure of such information from employees, unless the employer’s formal policies include the requirement for disclosure and such policy is incorporated in the relevant employment contract. In our view, such policy would not be generally inconsistent with the data protection principles. The information obtained in this way must be used only for the purpose of protecting the health and well-being of employees and customers and kept confidential. The employer however may be obligated to notify public health officials the (suspected) infection and this would not be an actionable breach of confidence.
(4) If an employer suspects or knows of specific employee(s) being infected, how does this affect its duty to customers?
(5) What is a sufficient mitigation of risk to customers or employees in an epidemic?
(6) Are employers obliged to notify employee infections to the public health authorities?
NBLO's view: employers have a general duty to provide a safe and healthy place and system of work and a context-dependent duty to customers. This duty is only more prominent and higher in the context of the epidemic and the public health measures in Bulgaria.
The application of this duty will be context-dependent in the Covid-19 situation and of the business. E.g., offices would need to be cleaned more or in a different way; personal protective equipment and personal hygiene materials may need to be provided.
These risks will be well-advised to be dealt with on advice from specialist health and safety at work consultants. At a minimum, the public health authorities’ updated guidance should be followed. In some cases this would be straightforward, but in other circumstances - impossible in practical terms. In other cases, there may be an uncertainty. For example, recent Covid-19 guidance requires that a place of work (e.g. an office) must be aerated (проветряване). It may be this requirement will on its face be met by a windowless HVAC system.
Working from home
(7) Can employees demand to be absent from work if they believe this is beneficial for their health?
(8) Can employers force employees to work from home/away from the office?
(9) Can employees refuse to attend to specific customers, participate in meetings or work in groups or in open plan offices or working environments which might be considered risky?
NBLO's view: it currently may be and will shortly certainly be a statutory obligation obligatory under draft legislation for an employer to provide home working arrangements, where this is reasonably possible. Where not possible or too costly, the duty is unlikely to apply.
Employees and employers may not generally discriminate against customers on the basis of their protected characteristics and disability (caused by illness) may be one such. However, this is counterbalanced by the employees’ right to a safe place of work. A reasonable refusal by an employee will be difficult to fault legally.
(10) Can employers suspend employees or send them on unpaid leave?
NBLO's view: in addition to any specific provisions that there may be in employment contracts, the Labour Code does not contain a statutory provision allowing employers to send employees on unpaid leave or lay them off temporarily without consent. However, if the period of forced inactivity at work continues for more than 15 days, on top of any additional contractual rights, employers can give employees’ a month’s notice and terminate their employment agreements.
(11) What are the sick pay obligations of employer
NBLO's view: where the employee has obtained evidence of his or her illness (a sick note), sick pay is standard: the employee is entitled to sick pay for the period of sick leave, subject to limits, and this is funded by a mixture of an employer’s direct contribution and social security funding.
(12) Are employers obligated to pay sick pay to employees who are quarantined but not documented as “ill”?
NBLO's view: quarantined employees (where the quarantine is imposed by the public health authorities) is paid for throughout its duration. Payment is by the employer for the first 3 days and is then taken over by the National Social Security Institute (s 40(5) of the Social Security Code).
(13) What are the personal duties of directors and other senior employees for the health and well-being of their staff? Are directors exposed to liability?
NBLO's view: Directors, senior managers and senior or specifically nominated employees may owe duties to and within their companies for the health and safety of staff and/or customers. This is a liability primarily owed to the company itself and employees would generally be unable to directly claim against directors, etc.
However, directors, senior managers or perhaps senior employees with delegated responsibilities they may be joined into any claims against the company as third parties and may ultimately bear liability insofar as it can be established that they personally breached duties they had undertaken in relation to the health-related damage. Such claims would generally be difficult to establish (primarily due to difficulties with establishing causation) but ought to be carefully considered on their facts.
(14) If employees are worried, are they free to communicate to the media about their concerns?
(15) If communicating with the media, what rules must employees follow?
(16) Are employees protected from retaliation if they ‘whistle blow’?
NBLO's view: as a matter of their duty of loyalty to the employer, employees are generally obligated to preserve the confidences of their employers and the reputation of their employer. In addition, employees must comply with any policy relating to media relations and others, which may be adopted and incorporated in the employment contract. There is no express ‘whistle blower’ protection for employees at this point in time, however.
(17) In the event of a prolonged period of inactivity or for business continuity purposes, may an employer terminate employment contracts or terminate new hires?
(18) Postponement of commencement of new contracts
NBLO's view: In addition to other grounds which may exist under the contract of employment, an employer may terminate employment by a month’s notice following a 15-day period of enforced inactivity for the employee.
This is an area of a high propensity to generate litigation and it is especially important to seek legal advice when planning to terminate one or more of the workforce to avoid undue negative publicity and otherwise undue compensation payments and expenses.
For more information, please contact us at firstname.lastname@example.org
Advising on an LCIA claim
Suppliers with less bargaining power sometimes accede to arbitration clauses which make bringing or defending a claim prohibitively expensive.
In such cases, it is especially important when acting for the potential claimant (and subject to a judgement on the overall viability of the claim), to offer a cost-effective solution to allow the claim to get off the ground. This may include assessing whether the arbitration clause is likely to be found effective or pathological, and whether it may be permissible and advisable to launch court proceedings instead (which can be more economical especially in their early phases).
It is also helpful to be able to rely on advice which is simultaneously excellent in relation to both the jurisdiction in which enforcement is likely to be sought (e.g., Bulgaria) and the jurisdiction whose governing law the parties have agreed to apply or which applies for another reason.
NBLO recently acted for a potential claimant in such a situation alongside the client's existing Bulgarian counsel to advise on the interplay of the arbitration rules of the London Court of International Arbitration (LCIA) and Bulgarian law and on the mechanics and prospects of a claim. We regularly and successfully collaborate with clients’ existing counsel to achieve the best results for such clients.
© New Balkans Law Office 2020