It will soon be a full year from the beginning of the state of emergency, and the last year has certainly been extraordinary in terms of employment. There are many managers who have been exposed for the first time to, for example, pay cuts, significant job restructuring, and wage benefits paid by the state. For a lot of managers, telecommuting has come to stay.
In this situation, which is somewhat precarious for employers, amendments to the Employment Contracts Act entered into force on 8 January 2021, which increased the fines for various violations of work organization. If previously a legal person was fined up to 1,300 euros for violating various provisions of the Employment Contracts Act, then according to the amendments to the Employment Contracts Act that have entered into force, the fines have been increased to 32,000 euros, i.e., an increase of almost 25 times.
Violations for which the Labor Inspectorate may impose fines are, for example, failure to provide the employee with data on the employment contract, failure to comply with the time limit for performing work, failure to keep records of individual overtime workers, or failure to provide daily or weekly rest periods. While the previous fine of up to 1,300 euros may have seemed like a small cost, compared to which the legal aid cost to find legally correct solutions were disproportionately high, then in the light of the current changes, it is definitely worth reviewing work organization and assessing its compliance with labor law. This is especially true given that many employers have had to reorganize their work over the past year, and the use of the home office and thus the independence of employees in shaping working time and the work environment has increased significantly.
As in practice, the organization of telework is still chaotic in many companies, and employers allow the rules on telework to take shape freely; now, it is appropriate to recall the basic rules that an employer must follow in a changing work environment.
Senior Associate, Attorney-at-law
Advokaadibüroo KPMG Law
+372 6676 805
First, if the parties to the employment relationship agree to work remotely, it is important that this agreement is also recorded in writing as an annex to the employment contract or at least by e-mail or messaging. On the other hand, it is advisable to agree on more detailed rules for teleworking in the rules of work organization or in a separate telework guide, which can be changed unilaterally by the employer. The fact of teleworking is in itself a condition of the employment contract, of which the employer must notify the employee pursuant to § 6 (4) of the Employment Contracts Act.
In the telework guide, we recommend agreeing on at least the following basic conditions:
- Organizational issues. For example, how many days a week can an employee perform his/her duties in the home office and whether he/she is free to choose these days or is obliged to be in the office on certain days. To avoid confusion, it is necessary to determine who will be informed when working in the home office (direct manager, all colleagues, it is sufficient to make an entry in the calendar). It must also be decided whether the employee is obliged to physically attend the meetings or appointments or can he or she do so by video call.
- Issues related to the calculation of working time. This issue is particularly important in the light of increased fines. It must be borne in mind that the calculation and measurement of working time is the responsibility of the employer. This has been confirmed, inter alia, by the Court of Justice in a more detailed analysis of this issue in Case C-55/18. For employees in the home office, the usual solution is to use different employee record programs, on the basis of which the employer can keep records of working time. It is also appropriate to remind that overtime work can only take place on the basis of the Employment Contracts Act by agreement of the parties or in case of an emergency.
- Occupational health and safety issues. As the home office is a workplace like any other within the meaning of the Occupational Health and Safety Act, the employer must also carry out a workplace risk analysis when sending an employee to the home office, take measures to reduce potential risks, and instruct the employee on creating an ergonomic work environment and work methods. Relevant instructions for preparing and supervising the risk analysis can be found on the Working Life website www.tooelu.ee.
- Incurrence of costs. As a rule, there are costs associated with setting up a home office. Here, the employer must assess his or her ability to contribute financially or in-kind to the establishment of home offices, if necessary, and if this is excessive, it must be decided not to allow employees who do not have an ergonomic workplace at home to work in the home office. If the employee works permanently at home, it may also be possible to take office tools and furniture home. Although, at first sight, the presence of a monitor or office furniture, for example, may not seem necessary, it must be borne in mind that workers in non-ergonomic environments have a very high risk of developing an occupational disease in the future, and in this case, the employer who has not provided an ergonomic working environment is responsible for compensating for the damage caused by the occupational disease (including the loss of income).
As time goes on, the more experienced and smarter employers become in organizing teleworking, and we are increasingly seeing employers turning to us for help in writing down clear telework instructions. As for the increased fines mentioned at the beginning of the article, we believe that the Labor Inspectorate will not immediately impose maximum fines for violations. However, we definitely recommend employers to review all aspects related to work organization and assess whether employment contracts have been properly concluded with all employees and, if necessary, telework agreements have been concluded, calculation of working hours is working correctly, and the employer has an overview of home office working conditions.