In the context of the risk of disease and the spread of the infection with Coronavirus and in order to adopt measures to prevent and protect the employees, the authorities recommend the flexibility of the employment relationship, and one of the proposed measures concerns the temporary modification of the work place by carrying out the activity through telematics, in the conditions provided by Law no. 81/2018 regarding the regulation of the telecommunication activity.
Thus, following art.33 of Decree no. 195/2020 regarding the establishment of the state of emergency, the employer may also unilaterally make the decision to introduce, when possible, during the period of the state of emergency, work at home or teleworking, by unilateral act.
According to the recommendations of the Ministry of Labor and Social Protection, each measure involves either an additional act to the individual employment contract (art. 17 paragraph 5 of the Labor Code) or a unilateral decision of the employer (art. 48 of the Labor Code).
Regardless of the form of application of the measure, the employer must fulfill the obligation of information provided in art. 17 of the Labor Code – prior to the conclusion or modification of the individual employment contract, the employer has the obligation to inform the selected person in order to employ or, as the case may be, the employee, about the essential clauses he intends to enter or modify in the contract.
We remind that the Law no.81 / 2018 regarding the regulation of the teleworking activity was published in the Official Gazette of Romania (Part I) no.296 of April 2, 2018 and entered into force on April 5, 2018.
For the begin, we should point out that teleworking is a form of work organization whereby the employee, on a regular and voluntary basis, fulfills the specific duties of the job, occupation or job he holds, in a place other than the job organized by the employer, at least one.day by month, using information and communications technology. Teleworking employee refers to any employee who carries out the activity under the conditions provided above
The teleworking activity is based on the agreement of the will of the parties and is expressly provided for in the individual employment contract once it has been concluded for the newly hired personnel or by an additional act to the existing individual employment contract.
Therefore, taking into account the current context, for the activity of the tele-working activity, an additional act will be concluded to the individual employment contract, under the conditions provided by Law no.81 / 2018, when fulfilling the specific duties of the position, or occupation that an employee can fulfill in a place other than the workplace organized by the employer, using information and communications technology.
The additional act regarding the activity of the teleworking activity will be concluded in written form and will contain the following elements:
- the express statement that the employee works in a teleworking regime;
- the period and / or the days when the teleworking employee performs his / her activity at a job organized by the employer;
- the place (s) of teleworking activity, agreed by the parties
- the program within which the employer has the right to verify the activity of the teleworking employee and the concrete way to realize the control;
- the way of highlighting the working hours provided by the teleworking employee;
- the responsibilities of the parties agreed according to the place (s) of the teleworking activity, including responsibilities in the field of safety and health at work;
- the obligation of the employer to ensure the transport to and from the place of the tele-marking activity of the materials that the teleworking employee uses in its activity, as the case may be;
- the obligation of the employer to inform the teleworking employee employee about the provisions of the legal regulations, of the applicable collective labor contract and / or the internal regulations, regarding the protection of personal data, and the obligation of the teleworking employee to comply with these provisions
- the conditions in which the employer bears the expenses related to the teleworking activity.
According to the Law no.81 / 2018, the teleworking employee benefits from all the rights recognized by the law, by the internal regulations and the collective labor contracts applicable to the employees who have the work place at the headquarters or domicile of the employer.
In the situation of teleworking activity, the employer has the following specific obligations regarding the safety and health of the teleworking employee:
- to provide the means related to the information and communications technology and / or the secure work equipment necessary for the performance of the work, unless the parties agree otherwise;
- to install, check and maintain the necessary work equipment, unless the parties agree otherwise;
- to provide conditions for the telesales workforce to receive sufficient and adequate training in the field of occupational safety and health, in particular in the form of information and working instructions, specific to the location of the telemarketing activity and the use of the display screen equipment: when hiring , when changing the location of the teleworking activity, at the introduction of a new work equipment, at the introduction of any new working procedure.