Employers must plan COVID-19 response, Baker McKenzie says


In the light of COVID-19ʼs appearance in Hungary, itʼs vital that employers are prepared in order to avoid possible infections as much as possible and respond appropriately to confirmed or suspected cases of infection, according to Baker McKenzie Budapest partner and head of employment practice Ákos Fehérváry, and lead employment lawyer Nóra Óváry-Papp.

The experts say that as Hungarian labor law does not contain specific provisions on what the employer can and should do in the event of an epidemic, each individual situation will be governed by the same labor laws that would otherwise apply in the normal course of business.

They recommend developing a so-called pandemic or contingency plan, which should define pre-emptive steps to minimize risk, steps to be taken in the event of an epidemic, and responsibilities and decision-making competencies, as well as ensure an adequate internal communication channel for employees and requisite remote work capabilities. If necessary, the business should consider whether business continuity measures are in place for resource or workforce shortages.

While companies cannot fully protect their employees and the business from the virus, they can take steps to mitigate risk, the experts argue. Employers can ensure that employees are fully informed, make disinfectant products available and encourage their use. Further useful measures include registering visitors entering the premises, and review whether business trips and meetings should be postponed. However, according to the Baker McKenzie experts, such measures present employment law and data protection issues that must be carefully considered.

One issue is whether employees can be required to tell their employer if they are infected or, even more controversial, if they notice their colleagues exhibiting suspicious symptoms. Given that an employee must not risk their colleaguesʼ health or the operation of the business, the employer presumably can and should impose such requirements, Fehérváry and Óváry-Papp argue.

The employer may exempt the employee from the obligation to work due to the threat of a pandemic, but must pay a basic salary for the duration of the exemption. The employer may also temporarily require employees to work from home where the position allows and where the work can be technically be performed from home.

Pursuant to the Labor Code, the employer may unilaterally order work at another place of work. The employer may also send their employees on paid leave, subject to the rules on leave, although in some cases the pre-notification requirements may not be met.

The experts say that it is much more arguable whether an employee can refuse to work or insist on working remotely due to the threat of a pandemic, for example if they feel at increased risk in the workplace, or if they have contact with a lot of people during the course of their work. In the absence of a specific risk to the employee, the employer is not required to agree - but it may be hard to determine was constitutes a specific risk.

If the employee is exempted from work at their request, the parties may agree on paid or unpaid leave. If an employee unlawfully refuses to work on the basis of an epidemic, this may give rise to the termination of their employment. In the case of a rapidly evolving epidemic, it may be unclear when it is unlawful for an employee to refuse work and whether the employer has sanctions for use at its disposal.

If there is a case of confirmed or suspected infection in the workplace, the employer may require their employees not to come into work. Whether the company is required to partially or fully close their offices, and the further steps they should take are less clear. If the employer is unable to fulfill their employment obligations due to an unavoidable external cause, they are exempt from the obligation to pay wages. It may be questionable whether the cause was in fact unavoidable, which is why it is particularly important that an employer puts adequate risk mitigation measures in place, the experts say.

A Specific example worthy of consideration is whether an employee is exempt from work, or is the employer required to exempt them from work and continue their pay if they canʼt come to work because their childʼs school was closed due to the epidemic and they donʼt have childcare?

Other such questions include "What happens is an employeeʼs relative is sick?", "What if an employee has traveled abroad to a high-risk area for business or personal reasons?", and "Can the employer impose travel restrictions and record employee travel, particularly in the case of personal travel?".

Labor law offers a number of solutions to such situations, the experts explain. In order to handle each situation optimally, all the circumstances must be carefully considered, including the individual situation of the employees as well as the various legal obligations related to employment law and data protection.

In the case of a diagnosed illness or taking care of a minor, sick leave and sick pay may be available to the employee. Equally, if an employee is officially quarantined, which may be ordered by the Chief Medical Officer if there is a risk of infection, they will be entitled to sick pay, but not if quarantine is ordered by the employer or voluntary. Where infection is suspected rather than confirmed, the employee is not entitled to sick leave or sick pay Fehérváry and Óváry-Papp say.

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