March 2020 – This article has been prepared by Kinstellar’s team in Bratislava based on frequently asked client questions and contains key legal recommendations for employers in Slovakia regarding the spread of the COVID-19 coronavirus.
If you have any questions relating to legal issues in connection with the COVID-19 pandemic, a dedicated team of Kinstellar advisors is available to you, consisting of experts in labour law, healthcare, corporate affairs and crisis management.
1. Is it possible to ascertain, in the context of general prevention, whether an employee was in a risk country?
Yes, as part of general prevention under Section 415 of the Slovak Civil Code, an employer is entitled to ascertain whether an employee was in a risk country, region or city.
Under the EU General Data Protection Regulation (GDPR), personal data necessary for an employer's legitimate interest (e.g., the health and safety of employees), as well as health-related data may be processed, if necessary, for preventive or occupational medicine and for the assessment of the employee's working capacity. When processing data, it is necessary to assess whether the data is necessary to achieve the purpose (i.e., not to collect more data than necessary in order for the employer to protect the health of its employees), as well as whether the interests of the data subjects, i.e., employees from whom the employer requests information, are outweighed. Health-related data is considered a “special category of data” subject to greater protection, and the employer is obliged to take appropriate measures to protect such data.
2. The employee returns from abroad (holiday, business trip). Is the employer obliged to order quarantine or home office? Does the employer have other obligations?
An employer cannot quarantine an employee. Only the public health authorities are empowered to impose a quarantine.
If an employee is quarantined by a public health authority, the employer must accept his/her absence from work. This is an “important personal obstacle to work on the part of the employee” as defined in Slovak legislation, similar to a “classic” sick leave (Section 141 of the Labour Code). During quarantine, the employee is entitled to a sickness benefit in the appropriate amount pursuant to Act no. 461/2003 Coll. on Social Insurance. Note that the situation is different if the employee stays at home due to the closure of a school or preschool and fulfils other conditions of the Social Insurance Act, in which case the employee is entitled to a nursing contribution, in Slovak “OČR”).
As the employer is obliged to ensure the health and safety of employees and to apply the general principles of prevention, the employer may, at its discretion, order an employee to carry out appropriate measures such as working from home, if the nature of the employee’s job so permits.
The employer may, at its own discretion, in the event that it is not in a position to order an employee to work from home, decide on so-called “obstacles to work on the part of the employer”. In such case, however, the employer must pay the employee a wage compensation equal to the amount of his/her average earnings.
Another possibility is for the employee to take paid leave. In general, however, taking paid leave cannot be ordered without the employee's consent, and therefore the employee and the employer must agree on taking paid leave.
3. The employee has a planned vacation, e.g., skiing in Italy. Does the employer have the right to refuse an employee’s request to take annual paid leave because of the threat of contagion?
In general, paid leave is determined by the employer after consultation with the employee and according to the plan of paid leaves. In determining this, both the employer's tasks and the legitimate interests of the employee should be taken into account. If the paid leave is only included in the plan of paid leaves but has not yet been approved, the employer does not have to approve such leave on the grounds that there are objective reasons. In such circumstances, the employer is not obliged to reimburse the employee for any expenses he/she may have incurred as a result of the leave not being approved.
The employer has the right to ascertain, or to be informed of the place where the employee will be present during a paid leave, if there are objective reasons to do so (see also the reply in section 1 above).
The Slovak Labour Code does not explicitly set out the reasons why an employer may change or cancel an already approved paid leave, but it is generally required that there are objective reasons. In our opinion, cancellation of leave for an employee who intends to spend it in areas where the disease is widespread with a high rate of infection can be regarded as an objective reason. In such case, however, if the employer cancels the employee's leave, it must reimburse the employee for the costs incurred as a result of the change in the leave. The costs incurred in this way must be quantified and demonstrated by the employee.
4. Can the employer make the taking of leave subject to the condition that the employee will only spend it in Slovakia?
Although the employer has the right to determine the taking of paid leave, it cannot determine where the employee should spend it. Such an interference with the personal freedom of the employee would be disproportionate and contrary to the fundamental rights and freedoms guaranteed by the Slovak constitution. However, when discussing holiday destinations, the employer may (and should) warn the employee of the consequences of staying in risk areas as described above.
5. The employer has planned a business trip of the employee abroad; if the employee becomes ill on return, what is the employer's responsibility?
The employer is, in accordance with Act no. 124/2006 on Occupational Health and Safety (“OHS Act”), obliged to ensure safety and health at work and to apply the general principles of prevention at work, which it is obliged to implement properly and on time to fulfil their purpose and to ensure that such measures are usable and accessible to the employee. If an employer breaches its obligations arising from the OHS regulations and sends an employee on a business trip to a country that the Ministry of Foreign and European Affairs of the Slovak Republic has recommended not to travel to, the relevant labour inspectorate may impose a fine on the employer for failure to comply with legal regulations and other regulations to ensure safety and health at work.
According to the OHS Act, employees have the right to refuse to work and to leave the workplace and go to safety if they reasonably believe that their life or health, or the life or health of others, is imminently and seriously threatened; therefore, they could refuse to make a business trip abroad if the destination has been deemed dangerous by the Slovak authorities.
If an employee has been sent abroad for a business trip and has fallen ill after returning from the business trip, the employer must respect the obstacle to work on the part of the employee due to temporary incapacity for work, without wage compensation and entitled to sickness benefits from the state social insurance system. In such a situation, however, the employer is not liable for the employee's illness or for any claims arising from it.
6. The employee refuses to undertake a business trip abroad; is it a violation of work discipline and how should the employer react?
According to the OHS Act, an employer has certain obligations concerning an immediate and serious endangerment of life or health. The employer cannot consider it as a failure to fulfil work duties if an employee refuses the performance of work, interrupts work or leaves the workplace for safety if they reasonably believe that their life or health, or the life or health of others, are imminently and seriously in danger.
In our opinion, employees have the right to refuse a business trip to an area where an emergency action is taken in respect of COVID-19 and employers cannot penalise such conduct as a breach of discipline.
On the other hand, an unjustified refusal to undertake a business trip could be regarded as a breach of work discipline.
7. If our company fails to meet agreed contractual obligations to our partner because of a cancelled business trip, does it have to bear penalties and sanctions under a contract, or is there a way to get rid of this liability?
Pursuant to the provisions of Act no. 513/1991 Coll., the Commercial Code (the “Commercial Code”), it is the duty of anyone who breaches a contractual obligation to compensate the other party for damage caused.
However, the party in breach shall be released from liability if they prove that the breach of obligations was due to circumstances excluding liability (force majeure). Circumstances that exclude liability are generally considered to be an obstacle that has occurred independently of the will of the liable party and prevents it from fulfilling its obligation, unless it can reasonably be assumed that the liable party could avert or overcome the obstacle or its consequences and that this obstacle was anticipated.
It will therefore be up to your company to prove to the contractual party, or later to the court, that in your particular case your company could not meet the obligation, e.g., quarantine measures were imposed, or an unpredictable and uncontrollable level of incapacity for work of employees who would otherwise perform work activity. It would not be sufficient to assert that COVID-19 has been widespread in general, and in our opinion courts will not accept such a vague reason.
Although ultimately the courts must decide on such questions relating to COVID-19, we believe that in the case of successful evidence, liability for non-performance of the contract can be avoided.
If your company is in danger of not meeting its obligations due to COVID-19, we recommend that you contact an attorney, as the provision of supporting records and evidence as well as proper crisis communication with the contractual party will be decisive in this regard.
8. Does standard corporate travel insurance cover the risks associated with coronavirus disease?
In general, yes, although it will depend on the particular insurance conditions.
In principle, two approaches of insurers in Slovakia can be defined:
(i) In respect to COVID-19, the insurance company covers the medical costs by travel insurance unless the insured person travels to a country (area) for which the Slovak Ministry of Foreign and European Affairs (“MFA”) has issued a warning (caution, recommendation) not to travel to.
Allianz: “Treatment costs incurred as a result of COVID-19 abroad are covered by travel insurance. The exception is if the insured person visits a state or a site that has been officially designated by the authorities as a state or a site with an epidemic or a pandemic has been declared by the World Health Organization (WHO), and to which it is recommended to consider travel or not to travel at all. “
Other insurance companies that have similar insurance exclusions in their general insurance terms and conditions are the European Travel Insurance Company, Generali and Wüstenrot.
(ii) The insurance company covers the medical costs of COVID-19 with travel insurance, irrespective of whether the Ministry of Foreign Affairs has issued any form of notice for that country.
Union: “Under the terms and conditions of travel insurance, if the insured is abroad or leaves abroad despite a warning by the Ministry of Foreign Affairs of the Slovak Republic, medical expenses due to illness or accident are fully covered by insurance (except in cases where the insured knowingly failed to comply with instructions from local authorities and police and military personnel to maintain personal safety). "
Union's general insurance terms and conditions [at the time of publication of this article] do not include a condition that would exclude from insurance benefits the expenses incurred in connection with traveling to a country for which the MFA has issued warnings. AXA’s and Uniqa’s general insurance conditions also do not include such an exclusion from insurance, but they have not yet published their opinion on COVID-19.
In any case, it is necessary to consider the insurance conditions of a particular product or the insurance company's guidelines, and last but not least, the recommendations of the MFA.
9. What should our company and management observe so they are not exposed to possible violations and prosecutions from the perspective of criminal liability?
In the extreme case, several offenses may be considered in connection with COVID-19, in particular the offense of spreading a dangerous contagious human disease; the offense of a breach of duty under a situation of imminent danger; the offense of a breach of a duty in a crisis or avoiding obligations in a crisis situation, if such is declared; as well as the offense of endangering public safety.
An employer, as a legal entity, cannot commit these offenses as they are strictly linked solely to the conduct of a natural person and thus to management. Only the offense of endangering public safety can potentially be committed by a legal entity.
In our opinion, committing the offense of spreading a dangerous contagious human disease is excluded, as only contagious diseases defined in the Decree of the Ministry of Justice no. 105/1987 Coll. in Annex no. 1 are punishable, and the disease caused by COVID-19 is not included in the Annex.
For further information about this subject and any assistance, please contact the authors of the article Adam Hodoň, Partner, at [email protected], Viliam Myšička, Partner, at viliam.mysicka@kinstellar.com, or Peter Kováč, Of Counsel, at [email protected].