Law no.58 / 2021 for the approval of OUG (Emergency Ordinance) no.211 / 2020 regarding the extension of the application of some social protection measures adopted in the context of the spread of the SARS-CoV-2 coronavirus, as well as for the modification of OUG no.132 / 2020 regarding support measures for employees and employers in the context of the epidemiological situation caused by the spread of SARS-CoV-2 coronavirus, as well as to stimulate employment growth was published in the Official Gazette no. 345 of April 5, 2021, with application from April 8, 2021.
We specify that the reduced work schedule mechanism, with the state settlements for those affected by the pandemic and which reduce, in the state of alert, the working time for employees, remains one of the main types of aid granted by the Government to companies.
The normative act aims, as it is known, at procedural and fiscal regulations regarding the reduced work schedule of the employees (Kurzarbeit (reduced working time)). In this sense, it should be mentioned that one of the amendments brought by law to the Emergency Ordinance no. 132/2020 refers to the formula for calculating the allowance, which will be, according to the new provisions, 75% of the gross monthly basic salary for hours. reduction of the work schedule.
We mention the fact that the old formula (according to the previous provisions), respectively 75% of the difference between the gross monthly basic salary provided in the individual employment contract and the gross monthly basic salary for the hours actually worked as a result of reducing working time, in addition due salary, calculated at the actual time worked, led to some anomalies in practice regarding the amount of the allowance.
Thus, by derogation from the provisions of art. 112 par. (1) of the Labor Code, in case of temporary reduction of working time, determined by the establishment of the state of emergency / alert / siege, in accordance with the law, during the state of emergency / alert / siege, as well as for a period of up to 3 months from the date of termination of the last period in which the state of emergency / alert / siege was established, employers have the possibility to reduce the working time of employees by no more than 80% of the daily, weekly or monthly duration provided in the individual employment contract.
Where there are trade unions entitled to negotiate the collective agreement at unit level or employee representatives, the measure to reduce working time shall be taken by the employer with the consent of the trade union entitled to negotiate the collective agreement or, if it does not exist, with employee representatives.
It is important to specify that the employer may change the work schedule whenever necessary, with the obligation to justify such a change, within the limits provided above.
The reduction of the working time is established by the employer’s decision, for a period of at least 5 working days, included in the period of 30 calendar days, starting with the first day of effective application of the measure. This measure also applies to the shift work schedule, as well as to the unequal work schedule.
The employer’s decision regarding the reduction of working time, the work schedule, its distribution by days and the related salary rights are communicated to the employee at least 5 days before the effective application of the measure.
According to Law no. 58/2021, during the reduction of working time, the employees affected by the measure benefit from an indemnity of 75% of the gross monthly basic salary related to the hours of reduction of the working hours.
If the employer’s budget for the payment of staff costs allows, the allowance may be supplemented by the employer with amounts representing the difference up to the basic salary corresponding to the job, without this difference can be settled like the allowance granted (75% ).
We mention that the indemnity is borne by the employer, from the chapter related to personnel expenses from its income and expenditure budget, and is paid on the date of payment of the salary for that month, to be settled from the unemployment insurance budget, after the employer fulfills declaratory and payment obligations related to income from salaries and assimilated to salaries for the period for which the request is made, in accordance with the provisions of the Fiscal Code, with subsequent amendments and completions.
The recently published normative act specifies that the procedure for settling the amounts is established by a decision of the Government.
If the employer does not recover the allowance granted according to Law 58 of the Unemployment Insurance Budget, he does not have the right to recover it from the employee.
From the fiscal point of view, the indemnity represents income of a salary nature and is subject to taxation and payment of social contributions, in accordance with the law. For the calculation of the income tax, the rules provided in art. 78 paragraph (2) letter a) of Law no. 227/2015 apply, with the subsequent modifications and completions.
In the conditions in which, during the same month, the employee obtains both income from salaries and indemnity related to the hours of reduction of the program, in order to be taxed, they are cumulated, for granting the personal deduction.
The monthly tax is determined according to the provisions of art. 78 paragraph (2) letter a) of Law no. 227/2015, with subsequent amendments and completions.
Law 58 also mentions that, during the period of applicability of the measure, it is forbidden to hire staff to perform activities identical or similar to those provided by employees whose working time has been reduced, as well as to subcontract the activities carried out by employees. whose working time has been reduced. The interdiction refers to the level of the branch, branch or other secondary offices defined by the Companies Law no. 31/1990, republished, with the subsequent modifications and completions, at the level of which the Kurzarbeit (reduced working time) measure is applied.
The employer may order the reduction of working time and may request the settlement of the allowance if the following conditions are cumulatively met.:
- the measure affects at least 10% of the number of employees of the unit;
– the reduction of the activity is justified by a decrease of the turnover from the month prior to the application of the measure provided in point 1 or, at most, from the month before the previous month, by at least 10% compared to the similar month or to the monthly average of business from the year prior to the declaration of the state of emergency / alert / siege, respectively 2019.
In the case of non-governmental organizations, as well as of the employers from the category regulated by OUG no. 44/2008 regarding the development of economic activities by the authorized natural persons, the individual enterprises and the family enterprises, approved with modifications and completions by Law no. 182/2016, the decrease is related to the realized incomes.
During the application of the measure, the employees affected by this measure cannot perform additional work at the same employer.
In the case of employers who apply Kurzarbeit (reduced working time), the granting of bonuses or other incomes apart from the basic salary established by contract, for the persons who ensure the management and / or administration of the companies, according to Law no. 31/1990, republished, with subsequent amendments and completions shall be made after the end of the period of application of the measure.
In the months when the reduction of working time is applied, the employer cannot initiate collective dismissals.