Declaration of the Emergency Situation: impact on employment relations | LEADELL Academy
On 9 October 2021, the Cabinet of Ministers of the Republic of Latvia adopted Order No. 720 “Regarding Declaration of the Emergency Situation” (hereinafter – the Order), declaring an emergency situation in the entire territory of the state from 11 October 2021 until 11 January 2022. In collaboration with the specialized legal magazine “Jurista Vārds”, the labor law expert – attorney-at-law and partner Ilze Jankeviča – explains the impact of Order on the rights and obligations of employers and employees.
In accordance with sub-paragraph 5.2. of the Order: Does the employer have complete discretion in deciding which employees are required to have a certificate to perform their duties and in deciding whether employees should be suspended for non-compliance with such an order?
Pursuant to the provision of Section 6, Paragraph one of the Labour Law, the provisions of orders of an employer which, contrary to laws and regulations, erode the legal status of an employee shall not be valid. In light of this, the employer should rigorously follow the provisions of laws and regulations when deciding for which employees a vaccination certificate or certificate of recovery is necessary for the performance of work duties.
First of all, the employer should assess whether it is not possible to employ the employee remotely, and if, taking into account the specific nature of the work, such an option exists, then the employer is obliged to provide employees with possibilities to work remotely (sub-paragraph 5.1.1. of the Order).
With regard to the decision on the necessity for a vaccination certificate or certificate of recovery, sub-paragraph 5.7. of the Order stipulates: an employer shall assess the work (official) duties and working conditions on-site of each employee (official), including volunteers and persons with outsourced service contracts, determining the risk of infection and the potential risk to the health of other persons. Based on the abovementioned assessment of the risk of infection at the working place, assessing each case individually, and taking into account the principle of proportionality, justice, and equality, an employee (official) shall be requested to have a vaccination certificate or certificate of recovery if any of the following circumstances exist:
5.7.1. if the employee (official), during the performance of work (official) duties, is in direct contact with customers, comes into physical contact, or continuously is closer than two meters from a customer or several employees (officials) perform work (official) duties in continuous mutual communication, come into physical contact, or continuously are closer than two meters;
5.7.2. if the employee (official) has increased possibilities to become infected by being in direct communication and contact with a large number of persons whose state of health is unknown;
5.7.3. if the on-site work (official) duties of the employee (official) are of critical importance to the public, and also to ensuring the continuity of the operation of an undertaking or institution.”
Thus, to request the employee to have a vaccination certificate or certificate of recovery, the employer must:
1) perform an assessment of each employee’s job responsibilities and working conditions on-site;
2) determine risks of infection for the employee, as well as the possible risk to the health of other people;
3) carry out an individual assessment of each case, taking into account the principles of proportionality, justice, and equality;
4) establish that at least one of the conditions set out in sub-paragraphs of sub-paragraph 5.7. of the Order is present.
During the assessment, the principle of proportionality must be taken into account. In this regard, the employer should consider the following aspects: 1) appropriateness, which means that the restrictive measure (requesting a certificate) is appropriate to achieve the legitimate aim; (2) necessity, which means that the measure adopted should not go beyond what is necessary to achieve the legitimate aim and that there is no less restrictive measure; 3) stricto sensu proportionality, which means that the inconvenience caused by the restrictive measure outweighs the advantages that justify the measure.1 In order to comply with the principle of justice, the employer’s action must comply with the requirements of laws and regulations.
In the meantime, the principle of equality requires that in the same factual and legal circumstances the treatment must be the same, but in different circumstances, the treatment must be different.2 Namely, for example, if two employees are in the same factual and legal circumstances, the employer should decide on the restrictive measures in an equal manner.
Concerning the employer’s discretion in the process of suspension from work, it should be noted that the suspension erodes the legal status of an employee. Henceforth, the suspension process must also take place only in strict compliance with the provisions of laws and regulations.
The Labour Law provides for the employer’s right to suspend an employee from work if the employee, inter alia, when failure to suspend an employee from work may be detrimental to his or her safety or the health or safety of third parties, as well as to the substantiated interests of the employer or third parties (Section 58, Paragraph two of the Labour Law).
Nevertheless, sub-paragraph 5.2. of the Order prescribes the obligation of the employer to suspend an employee who has been informed about the necessity of vaccination certificate or certificate of recovery for the performance of work duties, but has not commenced or completed vaccination within the specified period (by 15 November 2021). The procedure for suspension is determined by Section 58 of the Labour Law (see also below).
What does the term “suspension” referred to in sub-paragraph 5.2. of the Order mean: dismissal, unpaid leave, or something else?
Sub-paragraph 5.2. of the Order stipulates: “during the emergency situation: if an employer has informed the employee (official) that a vaccination certificate or certificate of recovery is necessary for the performance of work duties, the employee (official) has an obligation to commence vaccination not later than within 10 days from the receipt of the abovementioned information and to complete it not later than seven days after the shortest time period indicated in the instructions for the use of the vaccine. If the employee (official) has not commenced or completed vaccination within the specified period (by 15 November 2021), the employer shall suspend the employee (official) from the performance of work or official duties.”
Suspension from work is neither termination of employment (dismissal) nor leave without the maintenance of remuneration. According to Section 58, Paragraph one of the Labour Law, “suspension from work is a temporary prohibition, imposed by a written order of an employer, for an employee to be present at the workplace and to perform work, without disbursing remuneration to the employee during the period of suspension.”
Concerning the suspension process, it should be noted that:
1) an employee may be suspended from work for a period not exceeding three months (Section 58, Paragraph five of the Labour Law);
2) a written order of the employer must be issued to the employee regarding suspension from work (Section 58, Paragraph six of the Labour Law);
3) the order of the employer shall indicate the grounds for suspension and the term for which the employee has been suspended.3
What should be the course of action if an employee refuses to be vaccinated?
If an employee has been required to have a vaccination certificate or certificate of recovery, however, the employee does not present the certificate, then, taking into account the specific factual circumstances, one of the following solutions may be chosen.
Suspension from work
Suspension from work is a temporary prohibition, imposed by a written order of an employer, for an employee to be present at the workplace and to perform work (Section 58, Paragraph one of the Labour Law).
An employee may be suspended for a period not exceeding three months and no remuneration shall be disbursed to the employee during the period of suspension (Section 58, Paragraph one and five of the Labour Law).
Sub-paragraph 5.2. of the Order provides for the employer’s obligation to suspend the employee if the employee has not started or completed vaccination within the specified period (by 15 November 2021).
The employer may decide on determining furlough. Furlough occurs when the employer does not provide work to an employee or does not perform the activities necessary for the acceptance of the employee’s obligations (Section 74, Paragraph two of the Labour Law).
Furlough is not related to the employer’s choice (to fulfill or not to fulfill the employment contract), but to the inability to fulfill obligations due to objective circumstances.4 Thus, the furlough will only be justified if the employer is not objectively able to employ an employee who does not have the certificate.
It is important to note that according to Section 74, Paragraph two of the Labour Law, an employee shall not receive remuneration for furlough due to the fault of the employee. The Labour Law does not provide for restrictions on the time period of furlough.
Given that furlough restricts the employee’s rights, as well as to avoid mutual confusion, it would be advisable for the employer to issue a written furlough order to the employee, setting out all the circumstances and considerations underlying the furlough.
Amendment or termination of the employment contract
If due to the lack of a certificate, the employer and the employee are unable to perform the employment contract, they may agree to amend the employment contract, for example, by changing the employee’s job responsibilities, which would allow him/her to perform work duties remotely. The parties may also agree to terminate the employment relationship based on Section 114 of the Labor Law.
In addition, the employee is also entitled to terminate the employment contract in compliance with the provisions of Section 100 of the Labour Law, i.e., in the general case – by giving written notice of termination of an employment contract one month in advance.
In turn, the employer may terminate the employment contract if any of the grounds included in Section 101, Paragraph one of the Labour Law is present. Without establishing any of these grounds, the employer may take into account that, exceptionally, the employer has the right to bring an action in court within one month for termination of employment relations in cases other than those referred to in Section 101, Paragraph one of the Labour Law if he/she has an important reason. Any condition which does not allow the continuation of the employment relationship based on considerations of morals and fairness shall be regarded as such reason. The issue of whether there is an important reason shall be settled by a court at its discretion. (Section 101, Paragraph five of the Labour Law).
How to distinguish where the employee’s rights end and the entrepreneur’s needs/opportunities to provide continuous work to carry on with, for example, provision of services begins?
The employer has the right to take the necessary actions to ensure the proper functioning, including, the continuity of work and services provided. However, it must be taken into account that if such activities of the employer infringe the rights of a particular employee, the restriction of such rights is permissible only in strict compliance with the requirements of laws and regulations. This follows from the provisions of Section 6, Paragraph one of the Labour Law, which provides that the provisions of orders of an employer which, contrary to laws and regulations, erode the legal status of an employee shall not be valid.
Thereupon, if an employer wishes to take any action that restricts an employee’s rights, he/she should assess the factual circumstances, consider solutions that are necessary, appropriate and proportionate, as well as make sure that the implementation of such solutions is permitted by the norms of laws and regulations, including the Labour law. It is also necessary to strictly follow the procedures that laws and regulations provide for the performance of specific activities.
What to do in case of uncertainties?
As the Covid-19 pandemic continues, LEADELL Vītols team actively provides professional support to clients in labour law matters. Entrust these and other labour law issues to us: email@example.com
Attorney-at-law Ilze Jankeviča shared her knowledge at the LEADELL Academy. Ilze has in-depth knowledge in the field of labour law and she would be pleased to help you in finding solutions to issues arising from employment relations.