In connection with the Emergency Situation set by the Government because of the coronavirus epidemic, the Government has introduced and implemented a number of emergency measures through government decrees.
As regards labor law, the provisions of Decree No. 47/2020 (III.18.) Government Decree, the Labor Code shall apply with effect from 19 March 2020 with the following exceptions.
I. Possibility of deviation by mutual agreement between employer and employee
The most important temporary order is that until the Emergency declared in relation to the coronavirus, the employee and the employer may deviate from the provisions of the Labor Code by special agreement.
In our view, the above provision gives the parties almost complete freedom, in other words it is possible to derogate also to the detriment of the employee or to derogate from provisions which have hitherto been null and void.
The purpose of this provision is to allow the employer and the employee, with the will of their mutual will, to flexibly find the solutions which are in the best interest of both parties in the event of an emergency situation. However, in our view, this option does not give parties a boundless opportunity, as labor law principles (eg equal treatment, due process of law) and the requirement of good faith and fair dealing must continue to be respected.
When concluding agreements, it is also worth pointing out that the agreement will expire when the emergency situation ceases. Otherwise, if the parties do not terminate the agreement after the end of the emergency and continue to do so, they may, depending on the subject of the agreement, commit an infringement.
II. Derogation by unilateral action by the employer
The Government Decree also explicitly mentions three possibilities to derogate from the general rules of the Labor Code:
1. The employer may modify the working time schedule within 96 hours preceding the start of the daily working time, without incurring any liability to pay for downtime or overtime;
2. The employer is entitled to order homework or telecommuting by unilateral action;
3. The employer may take any necessary and justified measures to monitor the health of the employee.
Regarding health monitoring, it is emphasized that employers are not exempt from data management requirements. Therefore it is essential for the full legality of their action to create the conditions of its data management too.
The above mentioned 3 options are available for thirty days after the end of the emergency.
III. Work under curfew, proof of work
No. 71/2020 (III. 27.) Government decree introduced a curfew for the period from March 28 to April 11 and allows leaving the place of residence only for good reason. According to the Government decree, working is considered such a good reason. Although the Government Decree does not order to keep on hand a certificate of job, we consider it expedient to issue employer’s certificates for the employees to certify their work, especially for jobs that involve traveling or working hours outside normal working hours, such as working at night or on weekends. Job certificates should be issued having regard to any restrictions that may be expected in the event of an emergency. For branch specific content of the certificates, the Labor Law Expert Team of Fehér Legal & Tax will be happy to assist you.
Further details are expected in the future.
The above summary information is not intended to constitute legal advice in individual cases.