As everyone in Bulgaria has felt on a number of levels, the country has been in a state of emergency as of 13 March 2020, declared by a decision of the National Assembly. A number of orders from the Minister of Health have introduced and continue to introduce a number of anti-epidemic measures and restrictions. Some of these measures have also already been implemented in the form of a law, being included in the text of the new act on measures and actions during the emergency state, announced by the decision of the National Assembly from 13 March 2020 (“Act“).
Below you can find information on the questions that arise in the daily life of employers in the current situation in terms of employment law and data protection.
- Employment aspects – what is important for employers to know?
- Depending on the specific type of work, employers may assign employees to work from home or to work remotely without requiring their consent. The introduction of such a mode of work is made by an order issued by the employer, which also outlines the specific conditions for carrying out the work. According to the amendments in the Labour Code (introduced in the transitional and final provisions of the Act), by making use of this option the employer can only change the place of work, but not other elements of the employment contract.
- According to the minister’s orders, if the introduction of remote working is not possible for a certain business or a position, the employer must apply enhanced anti-epidemic measures on the work premises – filters, disinfection, frequent ventilation, provision of protective equipment, non-admission of employees or third parties showing symptoms of acute infectious diseases.
- The General Labour Inspectorate recommends and in the course of inspections requires, the risk assessment (prepared by the employer with the participation of the occupational health service, which each employer should have) to be supplemented by the new risks stemming from COVID-19 and, accordingly, organisational and technical measures to be envisaged and implemented by the employer to mitigate these risks. We recommend that employers carry out their activities during this period in close contact with their occupational health services, especially in view of the rapidly changing legal landscape.
- The Act and the amendments to the Labour Code introduced by the Act provide the following other possibilities for employers:
– to provide employees with up to half of their annual paid leave without the consent of the employees;
– to introduce part-time work for all employees or only for employees of certain departments during the period of the emergency state (before the Labour Code was amended, this was possible only when the workload is reduced and for no longer than three months in a calendar year);
– to suspend the work of the whole undertaking (or part of it) or of individual employees for the whole period of the emergency state (or for part of it). In this case, as well as if the work has been suspended due to an order of a public authority, the employer is entitled to provide the entire paid annual leave of the employees concerned without their consent (regardless of whether employees have eight months of employment on record or not). If the work is suspended by a public authority, the employer must not allow the concerned employees to access their workplaces for the period determined by the public authority.
If an employee falling within a certain category (for example a pregnant employee or an employee in an advanced stage of an in vitro treatment, an underaged employee or an employee with a permanent disability of at least 50%, an employee reassigned to another position for medical reasons etc.) requests to be granted paid or unpaid leave, the employer is obliged to accept the request.
The leave, when work has been suspended or when they are requested by these categories of employees, is considered employment on record.
When the work has been suspended due to the state of emergency, the employer must still pay the employees their gross remuneration (if respectively, they are not on a leave).
- The Act provides that during the state of emergency, no attachments shall be imposed on the bank accounts of individuals, as well as on salaries and pensions. However, attachments could still be imposed for maintenance obligations, for tort damages and for due salaries.
- Amendments to the Social Security Code provide financial aid to certain employers. If they meet the criteria set by the Council of Ministers, the National Social Security Institute will transfer to these employers 60 % of the social security income of the insured employees for January 2020 during the validity of the Act, but for a period not exceeding three months. The employer is obliged to pay the employees their full remuneration (i.e. the employer must pay the remaining 40 % of the remuneration from their own funds). If the employer does not pay the full amount of the remuneration to the employees for whom the financial aid has been received, the employer must reimburse the aid.
On 30 March 2020 the Council of Ministers adopted a decree setting out the particular requirements and procedure for granting the state aid. The aid could be used by (i) employers, whose operations have been discontinued as a result of an order of the state authorities for the duration of the emergency state (e.g. restaurants, bars) and (ii) almost all other employers (with few excepted industries which are otherwise supported by the state, e.g. agriculture), who have temporarily stopped (entirely or partially) work or have introduced part-time work for their employees and have a minimum of a 20 % decrease in revenue. The comparison basis for the decrease in the revenue depends on the date of establishment of the employer’s company. For companies established before 1 March 2019, the revenue for the month preceding the month of filing the application for financial aid should have decreased by at least 20 % compared to the same month in the preceding year (i.e. if the application is submitted in April 2020, the revenue for March 2020 should have decreased by at least 20 % compared to March 2019).
The main requirements for the employers applying for financial aid are:
- to be local natural or legal persons, or foreign legal persons having business activities in Bulgaria;
- lack of outstanding tax and social security contributions liabilities established by a valid act issued by the competent authorities;
- lack of insolvency or liquidation proceedings;
- to keep the employees for whom they have received the aid for a period not shorter than the period of receiving the aid;
- not to terminate employment agreements on the grounds of closing down of part of the enterprise, staff reduction, decrease of the workload, and on the grounds of putting a stop to the work, for more than 15 days during the period the employer receives the state grant;
- lack of established violations of employment and labour migration laws in the past six months before the issuance of the order for the work stop.
The deadline for filing applications for financial aid with the Employment Agency is 21 April 2020. Further details and samples of required documents are available on the website of the Employment Agency: https://www.az.government.bg/pages/izplashtane-na-kompensacii-za-zapazwane-na-zaetostta/
- Data Protection – what information could employers require from employees in regard to COVID-19?
In recent weeks, there have been numerous queries from companies about their right to ask employees about their health and personal travel, considering the pandemic. Unfortunately, these queries have been cast aside and have not found their answers in the Act.
The Bulgarian Commission for Personal Data Protection (“CPDP“) has not adopted guidelines in regard to COVID-10 yet (unlike the data protection authorities in Germany, France, the Netherlands, Spain, Italy, the UK, etc.).
The first glimpses of guidance on the topic came when the European Data Protection Board published statements on 16 and 20 of March (“Statements of the EDPB“). Although they provide some guidance, the Statements of the EDPB are unfortunately relatively general and refer to national law, and as we indicated above, the newly adopted Act does not touch on this topic. Therefore, the main source of answers remains the legal framework – the General Data Protection Regulation (“GDPR“).
The lack of specific guidance from the competent data protection authorities further complicates the challenges for companies, since in most cases the legal framework does not give a clear answer, and measures should be taken in light of all the circumstances of the particular case. Without being exhaustive, some of these challenges are considered below.
- Can employers measure the temperature of their employees?
A definitive answer cannot be given at this time.
Temperature measurement is a form of collecting employees’ health data, which is a special category of personal data. As a rule, such data cannot be collected, except under one of the exceptions expressly stated in the GDPR. In some EU countries, this measure has already been explicitly banned by national data protection authorities.
However, the CPDP has not yet issued an opinion on this matter. Therefore, although it carries some risk, this measure may still be introduced in some exceptional cases.
In the context of the pandemic, the Statements of the EDBP point employers towards the exception of “public interest in the area of public health”. The application of this exception, however, requires an additional basis in national law. Unfortunately, such a basis was not adopted under the Act. However, it could be argued that the legal obligation of employers to ensure healthy and safe working conditions could serve as such an additional basis.
Due to the current absence of clarity, it is advisable for employers to refrain from introducing such a measure. If applied, however, this measure should only be limited to cases of reasonable suspicion (e.g. symptoms, contact with a sick person, travel to a “high risk” country, etc.) and should be carried out by a healthcare professional.
- Can employers require their employees to provide information about recent or future travel to “high risk” countries?
Yes, given the current state of emergency.
Travel information to “high risk” countries is not a special category of personal data and can be processed on the basis of legitimate interest (as opposed to health information). A list of “high risk” countries has been published on the webpage of the Ministry of Health.
Given the pandemic, employers should be able to require this information, based on their legitimate interest and even their legal obligation, to ensure healthy and safe working conditions. Another basis that employers could rely on is the protection of the vital interests of their employees (a basis also mentioned in the Statements of the EDPB).
- Can employers ask their employees whether they have been in contact with a person with a COVID-19 positive test?
Yes, given the current state of emergency.
Information as to whether the employee has had contact with a person with a positive test for COVID-19 should also not be treated as a special category of personal data. Given the pandemic, employers should be able to rely on their legitimate interest and even their legal obligation to ensure healthy and safe working conditions also in this case. Another basis that employers could rely on is the protection of vital interests of their employees (a basis also mentioned in the Statements of the EDPB).
- Can employers disclose the names of employees with a positive COVID-19 test?
Generally no, unless in exceptional cases.
Disclosing the names of employees suffering from COVID-19 is also considered a special category of data. According to the Statements of the EDBP, employers can generally inform their employees of COVID-19 cases, but they must refrain from disclosing the name of the particular employee. A name can only be disclosed in exceptional cases when absolutely necessary and, if possible, to a limited number of persons – in order to protect the health of the colleagues with whom the sick employee has had contact.
In these exceptional cases, it could be argued that disclosure is necessary on the basis of an important public interest in the area of public health (in relation to the obligation to ensure healthy and safe working conditions). In making the decision, the employer must consider all the risk factors and specific circumstances of the case, including the nature of the sick employee’s job. For example, if the employee has worked from home for the last 14 days and has not contacted colleagues or clients since then, disclosure of this employee’s name by their employer might not be justified. On the other hand, if the employee was at their workplace and had contact with colleagues, the latter should be notified, subject to confidentiality and prior notification of the sick employee.
Another possible basis for disclosing the name of a sick employee is if the employee has manifestly made this information public (e.g. by posting on social media).
Of course, given the pandemic, employees should themselves realise their personal responsibility to inform their colleagues and other contacted persons so that the latter can at least take care of their health and that of their loved ones.
In conclusion, even if employers consider they could require some of the above personal data from their employees, the former ought not to forget that this must be done in compliance with all other data protection requirements. These requirements include being transparent with employees about the processing of their personal data, updating records of processing activities, performing a data protection impact assessment (where applicable), deleting data at the end of the pandemic, etc.
The above information is up to date as of 1 April 2020. In view of the rapidly evolving situation, the competent authorities update their guidelines on a daily basis. It is therefore necessary that companies evaluate any measures on a case-by-case basis, keep up to date with the latest developments and seek professional legal advice before taking any of the measures discussed above.
By Ivelina Vassileva, Attorney at Law, and Kristina Chakarova, Associate, Schoenherr
