HOME WORK EXPERT: Employers expect workers to “stand by” when they are already at home
The coronavirus pandemic imposed that work from home became inevitable and put it to a serious test, first of all for employers, but also for workers. It also opened many unknowns regarding the regulation of rights and obligations. That was the reason for the conversation with the expert for labor law Olga Vuckovic Kicanovic from the Center for Labor Law and Human Resources (FIDES), who told the BIZLife portal that the Labor Law should be fully respected, but also adjusted to the current situation.
Also, in practice, so far he notes that it is very difficult to strike a balance between the sustainability of work on the one hand and the rights of employees, on the other, and that this has proven to be the biggest problem during the pandemic.
- Article 42 of the Labor Law prescribes teleworking, but it is envisaged as a consensus, as an agreement between the employer and the employee. In your opinion, would any clarifications / changes be needed in that sense?
It is true that the Labor Law provides for Article 42 “teleworking”, which can be work from home, but this possibility is given as a form of work outside the employer’s premises, which the employer and employees voluntarily conclude. It is a contractual relationship, in which the participants, in addition to the essential elements of the contract, also define the manner of performing the work. “Korona” work from home is “forced” for the employee, and “recommended” to the employer by the Government of Serbia. If he does not follow the recommendation, he is threatened with the stigma of social irresponsibility.
Work from home can be specified by an annex to the employment contract or by a decision of the employer, if the employee is “transferred” to work from home, or by concluding an employment contract, if such an employment relationship is established. It is necessary to define working hours, break times, overtime or shift work if there is a need. The duration and periods of working hours can be flexibly regulated, but within the framework provided by the Labor Law. It is also necessary to specify the manner of communication with superiors, immediate supervisor and colleagues, provided that the employee must be available for communication during the agreed time, unless otherwise agreed with the employer. Furthermore, it is good to regulate the dynamics of work control – daily, weekly, ad hoc as justified and the way – report, insight, oral response, or other means of communication. All of this would make it easier to work from home for both the employee and the employer and make it more productive.
- What has been shown so far, what are and are frequent remarks of workers and employers regarding the organization of work from home?
Many employees have complained to me that they consider working from home discriminatory, since the employer expects them to be on “stand by” all day “when they are already at home”, that they have to use their vacation until July 30, while those who work for the employer that deadline is extended until the end of the year. They also complain that they are denied the requested vacation – because they “rested” since they did not come to work. They complained the least about the expenditure related to the use of personal funds, so I assume that they defined that item in a timely manner, by reimbursing real costs or by a lump sum.
- How is the salary calculated when the worker is ill with covida, is the employer obliged to pay it in full or is it only at the level of a recommendation?
Sick leave is reimbursed in the legal amount of 65 percent of the salary, unless the employees are directly exposed to the infection or a higher amount has been agreed. For example, public utility companies determined 100 percent compensation for their employees in an annex to the collective agreement. Regarding self-isolation (germ carrier or covid in the family), there is a collision between the Health Insurance Act, which prescribes 65 percent, and the Labor Law, according to which 60 percent is due to the termination of work through no fault of the employee.
Given the massiveness, the difference is huge. The recommendation of the Government of Serbia is to pay “at least 65 percent to full salary”, which is what some unions are advocating, referring to the social responsibility of the employer. exposed to infection or a higher amount has been agreed. For example, public utility companies determined 100 percent compensation for their employees in an annex to the collective agreement. Regarding self-isolation (germ carrier or covid in the family), there is a collision between the Health Insurance Act, which prescribes 65 percent, and the Labor Law, according to which 60 percent is due to the termination of work through no fault of the employee.
However, since time is difficult for everyone, it is incorrect to “recommend” gallantry to the employer. For the employer, the umbrella Labor Law (60 percent), so the state can be socially responsible and pay the difference beyond that. This applies to employers who have correctly fulfilled the tax obligations of insurance for employees precisely for the purpose of protection in such and similar cases. Of course, if the employer, despite the situation, operates very profitably, because there are activities that flourish at the time of the crown (delivery, pharmacy, etc.), it is correct, ethical and moral to increase the amount of compensation, especially if the nature of work increases the risk of infection.
- One gets the impression that there are a lot of unknowns in the public regarding the compensation of expenses, is the employer obliged to provide the worker when he sent him to work from home with all compensations, transportation costs, hot vault…?
If the employer provides its own means of work, it is necessary to install and maintain them. The employee is expected to keep “with the care of a good host”, without misuse, which is considered abuse if there is no special permission / agreement or reason for it. If the employee uses his own funds, the employer must keep in mind the possible technical limitations and the employee cannot be held responsible for the omissions caused by that reason. In addition, he is entitled to compensation for both real costs (internet, maintenance, printer, toner…) and depreciation costs (similar to when an employee uses his vehicle for business purposes). The compensation must be realistic, because according to the Labor Law (ZOR) it is non-taxable, so “inflating” this compensation can be sanctioned as tax evasion. The employer’s obligations regarding the injury at work from home are debatable. None of the set of laws that regulate work regulates this area because it is new and there is no adequate experience.
From this, it could be concluded that they are determined and processed in the same way as those that resulted from working in the employer’s premises.
However, having in mind the obligatory basis of compensation – harmful consequence, it is very difficult to connect the guilt of the employer with the injury of the employee, since he does not guarantee or have the obligation to provide working conditions and working environment. If they wanted to, the question of respecting the privacy of the employee would be raised. The case is excluded if the employee is injured due to a malfunction of the means of work that was not maintained / serviced by the employer, or is the property of the employee but carries a certain risk during use.
The fee for transportation to work is not paid, regardless of whether it is provided for in the Collective Agreement or the general act, but the food fee is debatable. An employee who is entitled to a meal allowance must also be fed at home, within the working hours of eight hours, so it would be logical that this obligation still exists, given that it is purposeful and necessary. However, in my practice I have not met an employer who pays it. And of course, working from home pays off in full – full time and full performance.
- What in situations when a worker is ill and cannot work from home?
If the employee is ill, of course he has the right to open sick leave, under the same conditions as to work on the employer’s premises. I say here that he has a right, but not an obligation, because it is possible that it is acceptable for an employee to work, but then there is no need to inform the employer about it, because it does not affect his productivity.
- What is your overall impression of the willingness of employers and workers to adapt to the new circumstances?
I think that slowly but surely working from home is becoming our reality in all activities where it is possible, but like everything in life, there are advantages and disadvantages. It is more economical for the employer, more comfortable for the workers, but it should be borne in mind that it develops less collegiality, leads to alienation and loss of a sense of belonging to the team, which is not to be neglected.
In case of reduced workload, the employer can determine forced leave, which, with the consent of the Ministry of Labor, can last over 45 days (with 60 percent compensation), or give collective leave, with the obligation to announce 15 days in advance.
- Given that vaccination has begun, can employers be expected to expect / insist that a worker be vaccinated in order to take less risk and prevent the spread of the virus within the company?
It shouldn’t be, but maybe it’s possible for doctors and immediately risky jobs. However, vaccination has only just begun and time will tell how circumstances will develop further.
Source: BIZLife / Jelena Andrić
Photo: Private archive
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