The Covid-19 Workplace: Labour Inspections at Employees’ Homes?28th September 2020
In response to the Covid-19 outbreak, Bulgaria like many other jurisdictions adopted legislation that facilitated work from home by employees who would normally provide from premises provided by their employer. As a result of the epidemic, many businesses allowed their employees to work remotely from their homes in order to mitigate the risk of contagion.
However, although employees were now situated in their homes, employment regulations would still apply to them, thus raising the delicate question of the balance between private property and public health.
The following note briefly discusses the competence of the Labour Inspectorate with regard to home office.
The Bulgarian Labour Code 1986 (the ‘Code’), since 2011, provides for the possibility of so-called “home working” (ss 107b-107g). Pursuant to the Code, an employment contract may stipulate that the employee shall work in his or her home, outside the employer’s premises.
This is however a rather rigid form: a special form of employment contract, which requires that home working happens from the employee’s home from the outset. The employee cannot be required to work from the employer’s office under this type of contract unless agreed upon. If not already provided for in the contract, a switch to working from the office will require a formal amendment of the contract.
With a home working contract, the employer must provide the necessary conditions for the performance of the work in question, not least to ensure that the working environment in the employee’s home meets the requirements for health and safety.
The employee, on the other hand, is obliged to, among other things, allow the employer and the inspection authorities to visit the premises in his or her home, where he or she works – s 107e(2) of the Code.
The above proviso leaves no doubt that the Labour Inspectorate can enter the employee’s home – only to the extent necessary to check the working conditions there. Furthermore, unlike the legal rules governing distance working, considered below, there is no express requirement for prior notification to the employee and his or her consent to the inspection.
Per s 107e(1) of the Code, the home working employee must comply with the health and safety requirements. Therefore, it is possible that, if the Labour Inspectorate attends and inspects, and finds a breach, the employee may be liable, depending on the circumstances. The liability may take the form of a fine imposed by the Labour Inspectorate and/or disciplinary punishment (remark, warning for dismissal, or dismissal) imposed by the employer.
In addition to “home working”, the Code provides for so-called “distance working”, which is most similar to the concept of the home office as known around the globe. The chief difference between distance and home working is that the Code expressly relates distance working and the use of IT, i.e. the idea of employees working from homes at a desk and with computer, whereas home working rather envisages manual labour and services and the like (say, artisanal activity, sewing, etc).
As with home working, the Labour Inspectorate can enter the employee’s home to the extent necessary to check the working conditions there, however only during working hours and following notification to the employee and the latter’s consent – s 107k(5)(2). Employees have to have a good reason to refuse such access.
Again, as with home working, considered above, the employee must comply with the health and safety requirements and may be liable for a breach thereof. The possible consequences are the same: a fine imposed by the Labour Inspectorate and/or disciplinary punishment (remark, warning for dismissal, or dismissal) imposed by the employer.
Home office in the context of the Covid-19 measures
Both types of work described above presuppose an employment contract, an employee must voluntarily agree to home or distance working, respectively.
The Covid-19 pandemic was felt to have called for modifying the principle of voluntarism. It was key to support employers in their efforts to safeguard their employees’ health which was incompatible with lengthy renegotiations of their contracts.
Against this backdrop, a new s 120b of the Labour Code was adopted on 13 March 2020, which allowed employers, during a state of epidemic or a state of emergency, to unilaterally amend the contracts and send their employees to work from home/distance. The provision expressly lays down that all other conditions under the contracts shall remain unchanged, but remains mute as to whether the Labour Inspectorate can avail itself of its powers in this situation.
So, can they enter employees’ homes for inspections when the latter have been sent to work from home office in accordance with s 120b of the Code?
In the light of the principle of safety first which permeates the Code and the express possibility for home inspections under normal circumstances, laid down in ss 107e(2) and 107k(5)(2), the better view is that employees are obliged to provide access to their homes for inspections, accounting for the differences between home working and distance working; where the employee’s prior consent and notification is needed for the latter, but not the former.
For more on employment issues during the Covid-19 epidemic, please see our article on the topic.
NBLO regularly advises clients on employment matters. If you have any further questions relating to such, including in the context of Covid-19, please do not hesitate to contact us.