COVID-19 – Workplace Response to the Mandatory Isolation Measure
COVID-19 – Workplace Response to the Mandatory Isolation Measure
Since the Serbian government declared the State of emergency on 15 March, we have seen various decisions being adopted, often overnight and with immediate effect, in order to prevent the spread of the COVID-19 infection. The sheer number of them, as well as highly unusual social situation that was imposed by the spread of the virus, created some confusion among both citizens and companies when it comes to reacting properly, abiding the law, but also keeping the everyday wheels turning in hope to minimize economic damage the pandemic creates.
One of the decisions that was adopted involves mandatory isolation, which we will try to break down here and offer some clarification on the issue. The mandatory isolation measure was one of the first ones to be imposed by the Government hoping to prevent the fast virus spread. It was introduced by the Decision on declaring COVID-19 caused by the SARS-COV-2 an infectious disease on 11 March 2020, and it involves health surveillance with mandatory isolation at home, i.e. obligatory quarantine for all people entering the territory of Serbia in specially designed facilities. The measure applies equally to both nationals and foreign citizens.
The Decision was followed by the Decree on Emergency Measures during the State of Emergency (16 March 2020) that stipulates that the Ministry of Interior, together with the Ministry of Health, may temporarily order individuals or groups of people who are infected or suspect of it, to remain at their place of residence, with an obligation to report to the authorized health institution.
How do these measures apply in practice? Well, if you are diagnosed with COVID-19, you are prevented to work, probably receiving hospital treatment, and are entitled to a salary compensation due to temporary inability to work. But one of the key issues for employers is what are their obligations, and what are the rights of the employees when it comes to mandatory isolation and quarantine of non-diseased persons?
What Does the Law Say?
The rights and obligations of employees and employers with respect to obtaining remuneration in the event of temporary inability to work are envisaged by the Labour Act and explained in detail in the Health Insurance Act.
Article 115 of the Serbian Labour Act provides that an employee who is temporarily unable to work is entitled to remuneration in the amount of 65% of his average salary if it is caused by illness or injury outside of work or 100% of his average salary in the case of temporary inability to work being caused by occupational disease or injury at work. Average salary implies the average salary of the employee in the previous 12 months before the month in which a temporary inability to work occurred.
Undoubtedly, the outbreak of the COVID-19 pandemic cannot be considered an occupational disease, and accordingly, employees would be entitled to remuneration in the amount of 65% of their average salary. Remuneration to the employee is paid at the expense of the employer for the first 30 days of duration of inability to work, after which the Republic Health Insurance Fund takes over the expense.
Furthermore, Article 73 of the Health Insurance Act provides that remuneration for temporary inability to work is paid to health insurers-employees, inter alia, in the event that inability to work is caused by an imposed measure of mandatory isolation. Therefore, an employee that is obligated to stay isolated due to the measure of mandatory isolation or quarantine is entitled to open sick leave and receive remuneration while he is unable to work.
How Does This Apply in Practice?
While at first glance, the situation seems simple enough, there have actually been many problems when it comes to exercising the right to remuneration due to the way the isolation measure itself is being implemented.
Pursuant to Article 103 of the Labour Act, employees are obliged to provide a certificate from the doctor on the occurrence of temporary inability to work to the employer, within 3 days from the date of occurrence of inability to work. Based on such a certificate, employees are offered sick leave and are entitled to compensation. In this peculiar situation, employees who are in isolation are not only unable to provide their employer with the requested certificate within the stated deadline, but also do not have any specific act that they can provide to employers.
Initially, mandatory isolation was imposed exclusively orally, so, for instance, persons crossing the border and entering the territory of the Republic of Serbia did not actually receive any act ordering them isolation, but the sanitary inspector at the border verbally ordered them to reside in their place of residence for the next 14 or 28 days, depending on which country they came from.
After the Decree was adopted, the Decision was amended on 18 March 2020, improving this situation on paper, stipulating that the persons upon mandatory isolation has been imposed, have the right to demand a written decision, issued by the sanitary inspection or other competent authority of the Ministry of Interior, depending on the fact that whether an isolation measure of 14 or 28 days was imposed. We say here improved on paper, because according to the official sources, mandatory isolation has been imposed on more than 80,000 people, thus making the process of drafting and delivering written decisions slow and ineffective.
Save for inability to acquire any proof that isolation has been imposed to them, the employees are also not able to obtain a certificate from a competent doctor, since they cannot leave their home or quarantine under the threat of criminal prosecution.
Nevertheless, this does not mean that employers do not have to pay employee remuneration during their mandatory isolation. Considering that employees are in isolation contrary to their will, based on a decision of state authority, and the fact that isolation is envisaged as a reason for temporary inability to work, and also taking in consideration the fact that the employees are virtually unable to obtain a certificate from a competent doctor, the employees cannot bear the negative consequences of such situation.
In this particular case, employees are still obliged to notify the employers if isolation has been imposed to them, as well as to provide the employer with proof of this by electronic means if any, and then after the expiry of the mandatory isolation measure, the employees are obliged to obtain and submit to the employer a certificate from the doctor of inability to work during the isolation period. The employers are obliged to pay employee remuneration in the amount of 65% of employee’s average salary for the last 12 months in 30 days at maximum.
In order to provide to all employees an ability to obtain proof that mandatory isolation has been imposed to them, Ministry of Health published a notice on their website on 2 April 2020 that all persons who received an isolation order can file an application electronically, after which they will receive an official confirmation.
Considering that this situation is not ideal for either the employer or the employee, there is another possibility. As the right to remuneration during a temporary inability to work is the exclusive right of employees, this does not mean that the employee has to exercise such right. Taking into account the nature of the work performed by the employee, the employer may, with the consent of the employee, provide the employee in isolation possibility to work from home or remotely. In this situation, the employer would be obliged to pay the employee 100% of his salary, but he would not be left without an employee during the isolation period.
Finally, on 3 April 2020, the Government has adopted the Conclusion 05 no. 53-3008/2020-2 that recommends to all employers to pay the employees who are in isolation or under treatment for COVID-19, remuneration in the amount of 100% instead of 65% of the average salary for the first 30 days of temporary inability to work, and to cover the difference up to 100% after 30th day. Of course, the Government’s recommendations are not legally binding, and their implementation depends solely on the decision of the employer.
This text is for informational purposes only and should not be considered legal advice. Should you require any additional information, feel free to contact us.
Milan Samardžić , Partner
Nemanja Providžalo, Senior Associate
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