Can Employees Be Required To Report For Work If A Colleague Of Theirs Tested Positive For COVID-19 Virus?
CLUJ-NAPOCA, 16th November 2020: The ‘Employer’s Guide on Managing Your Workplace During COVID-19 pandemic’ was recently drafted on the basis of the resources, guidelines and directives published by the World Health Organization (WHO), Governments, and Employers and Employers’ Organisations (EOs), published by the Australian Chamber of Commerce and Industry (ACCI). The guide has been developed for the benefit of employers and Employers’ Organisations (hereinafter referred to as EOs) around the world, as they adapt to the current changes caused by the COVID-19 pandemic.
According to the guide, although ‘the employer has taken reasonable and practical steps to address and minimise the risk of occupational exposure, some employees may still experience exposure issues, including exposure while traveling to work by public transport. In such situations, the employer may order the worker to work from home, and if the nature of the service function is not suitable for remote work, the employer must consider the option for workers to take their accrued time off, or leave days.’
Analysing these guidelines, we can establish from the outset that the unequivocal recommendation is that, where possible, the work should be performed from home. This measure aims to eliminate the contact between employees and thus reduce the risk of infection with this virus.
‘In the situation where, given its nature, the work performed cannot be carried out from home, the employer shall ensure the health and safety at work of employees, according to the national legal provisions previously mentioned in conjunction with the measures ordered by the national authorities by the legislation on the elimination of the risks of COVID-19 infection at work,’ says Lucian Pop, lawyer at Iordăchescu & Associates.
On the other hand, in the event that the employer encounters situations where there are risks for employees at work or while traveling to work or from the workplace to their homes, the employer shall not consider the employee’s possible refusal to be physically present at work as a disciplinary misconduct, when there is sufficient evidence to conclude that there is a risk of COVID-19 infection.
‘Given that Romania is a Member State of the WHO, obviously the guidelines and obligations included in the aforementioned guide are also applicable in our domestic law, and employers will have to consider these ways of managing situations that may arise at work, amid the coronavirus pandemic,’ continues lawyer Lucian Pop.
It is easy to understand that the solutions which may be implemented by the employer depend greatly on the nature of the work performed, meaning that the employer will have to organise the activity of employees in such a way as to be performed from home.
In the event that it is imperative for the employee to be physically present at work, the employer shall ensure the health and safety of the employees and only under these conditions will the employee be required to be physically present at work.
On the other hand, an employee who refuses to be physically present at work shall not be punished if it is not essential for the performance of the activity and if he/she invokes reasonable grounds for the risk of infection with the COVID-19 virus.
‘We are of the opinion that in the next period both employers and employees will face unique situations, certainly not anticipated by the aforementioned guide and to which it will be increasingly difficult to find sharp answers that leave no room for interpretations. Along the same lines, we are eager to see how the jurisprudence will provide guidelines on the matter and if such will be taken into account or the employers will comply with the strict and limited application of domestic law,’ concludes lawyer Lucian Pop.