We remind you that the Law no.283 for the amendment and completion of the Law no.53/2003 – Labour Code, as well as of the Government Emergency Ordinance no.57/2019 on the Administrative Code was published in the Official Gazette (Part I) no.1013 of 19 October 2022, with applicability from 22 October 2022.
The recently published normative act replaces the provisions on periods when an employee does not work, but are considered periods of work performed.
Previously, the Labour Code stipulated that, in addition to work actually performed, periods of temporary incapacity for work, maternity leave, maternity risk leave and leave for the care of a sick child were considered as work performed for the purposes of determining the duration of annual leave. It should be noted, however, that periods when the employee is on unpaid leave or technical unemployment affect the number of rest days available in a year.
The amendment introduced by Law 283 also concerns paternity leave, whose legislative framework has recently been adjusted (OUG 117/2022), carer’s leave and absence from work for family emergencies.
Thus, according to Law 283/2022, the most important changes are:
· Introduction of carer’s leave for a sick relative:
Thus, Law 283/2022 introduces a new article, namely Article 152^1, which provides that the employer is obliged to grant carer’s leave to the employee in order to provide personal care or support to a relative or a person living in the same household as the employee who needs care or support due to a serious medical condition, for a duration of 5 working days in a calendar year, upon written request of the employee.
Please note that for the purposes of Article 152^1 paragraph (1), as well as paragraph (3), a relative means the son, daughter, mother, father or spouse of an employee.
Special laws or the applicable collective labour agreement may establish a longer duration for the carer’s leave than the above.
As stated above, the period of carer’s leave is not included in the duration of annual leave and constitutes seniority in work and in the speciality.
By way of derogation from the provisions of article 224 paragraph (2) of the Law no. 95/2006 on health care reform, republished, with subsequent amendments and additions, employees who benefit from carer’s leave are insured, during this period, in the social health insurance system without payment of contributions. The period of carer’s leave constitutes a contribution period for the establishment of entitlement to unemployment benefit and temporary incapacity benefit granted in accordance with the legislation in force.
Serious medical problems and the conditions for granting carer’s leave are established by joint order of the Minister of Labour and Social Solidarity and the Minister of Health.
· Regulating absence from work in borderline situations:
The employee has the right to be absent from work in unforeseen situations, caused by a family emergency due to illness or accident, which make the immediate presence of the employee indispensable, provided that the employer is informed in advance and that the period of absence is made up until the employee’s normal working hours are fully covered.
According to the new provisions, absence from work may not exceed 10 working days in a calendar year.
The employer and the employee agree on how to make up the period of absence, up to a maximum of 10 working days in a calendar year.
These days must therefore be made up at a later date by the employee, the arrangements for making up the absence being agreed with the employer. The employee’s rights are maintained during the period of absence due to the emergency.
Moreover, employers are not allowed to dismiss the employee during absence from work for family emergencies.
We stress that time off for family emergencies is considered to be a period of work done and that the request for such time off will not affect annual leave.
· Paternal leave:
Paternal leave is the leave granted to the father of the newborn child under the conditions provided by the Paternal Leave Law no. 210/1999, with subsequent amendments and additions.
The employer is obliged to grant paternal leave upon written request of the employee, in compliance with the provisions of Law no. 210/1999, as amended and supplemented.
The granting of paternity leave is not conditioned by the period of work performed or by the employee’s work seniority.
· Changes to the individualised work programme:
According to Law 283/2022, any employee has the right to work for different employers or for the same employer, under individual employment contracts, without overlapping working hours, receiving the appropriate salary for each of them.
No employer may apply unfavourable treatment to an employee who exercises this right.
· Introduction of the right to request a change of post to a vacant post:
We would like to point out that it introduces the right of the employee to request a transfer to a vacant post that provides more favourable working conditions, a right that can be exercised provided that the employee has completed his probationary period and has at least 6 months’ seniority with the same employer.
· Teleworking for state employees:
In application of the provisions of Article 374 paragraph (3) to (11), the public authorities and institutions shall approve procedures for carrying out teleworking activities, respectively for working at home, which include at least the following aspects:
a) the format of the application for teleworking or homeworking;
b) the means necessary for the performance of the duties according to the job description, in teleworking or homeworking mode, that the civil servants must have, including, but not limited to: telephone, desktop or laptop computer, Internet access, electronic signature, secure remote access to IT systems, to the e-mail system and to the documentary resources of the institution used at the level of the department where the civil servants carry out their activity or to other resources and information necessary for the performance of the activity, as appropriate;
c) the mechanisms for proof, reporting and monitoring of teleworking and homeworking activities.
The telework activity is based on the voluntary agreement of the parties and is carried out following the approval by the head of the public authority or institution of the request of the public official.
The heads of public authorities and institutions shall establish by administrative act the structures within them, the activities, as well as the posts for which teleworking may be approved.
The duration of the teleworking activity may not exceed 5 days per month.
The performance of teleworking activities can be approved for:
a) civil servants who have children up to the age of 11;
b) civil servants who provide care for a relative, within the meaning of Article 1531 paragraph (4) of Law No 53/2003, republished, as amended and supplemented, with whom they live in the same household;
c) civil servants who are in a state of health that does not allow them to travel to the premises of the public authority or institution, due to serious illness or pregnancy, as proved by a medical certificate;
d) civil servants who carry out activities among those determined by the head of the public authority or institution as being able to be carried out by teleworking.
Civil servants who work in teleworking mode have the following obligations:
a) to have all the means necessary to carry out the duties assigned to them according to the job description;
b) to respond to any request relating to professional activity received from superiors, during working hours, transmitted by means of remote communication;
c) comply with the rules contained in the Institution’s Rules of Organisation and Functioning, Internal Rules, rules on the protection of personal data and other specific applicable rules and procedures, as appropriate.
The public authorities and institutions at the level of which there are civil servants who carry out their activity in teleworking mode have the following obligations:
a) to verify the activity of public officials, mainly through the use of information and communication technology;
b) to ensure that the working hours worked by civil servants in teleworking mode are recorded;
c) to ensure that public servants have the information and communication technology means and work equipment that are functional, safe and necessary for the performance of their work, or to provide public servants with such means and equipment;
d) ensure that public servants receive sufficient and appropriate training in occupational safety and health, in particular in the form of information and work instructions on the use of equipment.
During the period of teleworking or working at home, civil servants are entitled to all the rights recognized by law, except the bonus for hard, harmful or dangerous working conditions
Legal basis:
-Labour Code of 2003 (Act No. 53 of 24 January 2003) – republished, as amended and supplemented;
-Law 283/2022 for the amendment and completion of Law No. 53/2003 – Labour Code, and Government Emergency Ordinance No. 57/2019 on the Administrative Code.