The COVID-19 pandemic has put remote work under the spotlight more than ever before. With the virus catching many off-guard and not showing any signs of slowing down, employers are faced with the necessity to introduce remote work to limit personal contacts and secure occupational safety and health of their employees.
The challenges of remote work exposed the faults of the Serbian legislation in this area, creating uncertainty and sparking expert debates dominated by several key legal issues discussed below.
The Serbian Labour Law regulates remote work through a number of protective clauses with the aim of addressing the particularities of remote work and ensure equal treatment. Art. 42 of the Labour Law lists the remote work-related matters that need to be addressed in the employment agreement such as supervision of work, providing necessary equipment and reimbursement of remote work-related expenses to the employee. In addition, under Art. 50 para. 2, the Labour Law vaguely stipulates that employer and employee may agree for the employee to perform a part of its work remotely.
The Labour Law does not specifically regulate temporary remote work due to exceptional circumstances, such as the COVID-19 pandemic.
The employee’s consent for switching to remote work is required without exception and, arguably, this consent needs to be in the form of an annex to the employment agreement, however, there are differing opinions.
Some experts argue that the annex is not necessary as the wording of Art. 50 para. 2 of the Labour Law is sufficiently imprecise to allow switching to remote work regardless of the form of the agreement between the employer and the employee, going so far to claim that a simple email consent given by the employee should suffice. Others, including the Serbian Ministry of Labour, opt for a bit more conservative interpretation, recognizing the annex to the employment agreement as the only lawful way to effectuate the switch to remote work (for fixed or indefinite term, full time or part time).
So far, it seems that during the pandemic few Serbian employers have actually concluded annexes to the employment agreements for the purpose of administering remote work. Early on in the crisis, the Serbian Government enacted the Regulation on Organizing Work During the State of Emergency (“Regulation”), which was in force from 16 March to 5 May 2020. The Regulation imposed an obligation on the employers to enable remote work for all employees whose work can be performed on a remote basis. If the employer’s employment rulebook/collective bargaining agreement or individual employment agreements did not regulate remote work, the employer was required to unilaterally administer remote work by issuing individual decisions to each affected employee. Once the Resolution ceased to be valid, the employer’s decision no longer represented the legal basis for the remote work. However, either due to being misinformed, or with an aim of simply avoiding the administrative burden of annexing the employment agreements, many employers decided to continue switching employees back and forth to remote work via decisions or simply under oral agreements. Although, in many cases, the employees will agree to work remotely, this does not diminish the fact that such practice of some Serbian employers is not lawful and that they could face penalties.
Currently, the employers lack an efficient way to administer a swift switch to remote work in exceptional circumstances, such as COVID-19. Amendments of the legal framework that would enable employers to impose temporary remote work within a simple procedure could be the answer.
For many, the wording of Art. 42 of the Labour Law does not provide a clear answer whether the employer is the one who must bear the employee’s remote work-related expenses, or it is only necessary for the employment agreement for remote work to address this matter while the employer and the employee are free to agree on no such reimbursement.
Having in mind the protective nature of Art. 42 of the Labour Law, but also taking into account the fact that its provisions do not provide any details on determining the type and the amount of remote work-related expenses, it makes sense for the employer and the employee to be able to freely agree on those expenses.
The full pragmatism of arranging remote work in conditions of emergency would necessitate the relaxation of the manner of delivery of employment-related documents to employees. This is because the Labour Law provides for the obligation to personally submit a decision on the rights, duties and responsibilities arising from employment, at the employer’s premises, as well as, when this is not possible, strict rules of alternative delivery to the address of residence, or by posting on the employer’s notice board. Described delivery method was a particularly challenging request during the state of emergency which, once again, confirmed that the amendments to the Labour Law should enable electronic formal communication between employers and employees, primarily via e-mail or other similar electronic communication channels.
In line with the Serbian Occupational Health & Safety Law (“OH&S Law”), the employer is obliged to provide the workplace and work environment in which health and safety measures have been implemented. As the OH&S Law does not specifically address remote work, it remains unclear how can employers meet their occupational health and safety obligations in case of remote work, whether they are required to amend their risk assessment act, and even more so, how to assess that risk without entering the employee’s workspace.
In January 2021, the Ministry of Labour published its Guide for Safe and Healthy Work from Home (“Guide“). For the purpose of the Guide, work from home means work via information and communication technologies (computers, smartphones, tablets). The Guide provides practical guidelines, specifies rights and duties of both employers and employees, and prescribes minimum standards for health and safety when working from home.
According to the Guide, OH&S rights and duties should be further specified in the employer’s employment rulebook/collective bargaining agreement or the employment agreement, in particular, by determining jobs that can be performed from home, equipment and tools, the manner of supervision and communication, and the manner of implementation of OH&S measures.
The Guide includes a number of rather specific recommendations for organizing workspace at home. For example, the employee should designate the area (a separate room, if possible) which will be considered as workspace. The workspace should be clean and accessible, with electrical installations designed and set in a manner that does not represent fire risk. From the ergonomic aspect, if technically possible, the employer needs to ensure that the equipment is adjustable (desk, chair, monitor, keyboard). Also, the monitor should be safe from screen glare and the chair should be stable and comfortable. The workspace should have adequate lighting, a low degree of noise, and adequate temperature.
The Guide also recommends having frequent online meetings and organizing online help to the employee, regular examination of the work equipment and tools, providing regular instructions and OH&S training.
The employer should ensure that the employee has work schedule and uses breaks he/she is entitled to.
As for the risk assessment, home-based jobs may be included in the risk assessment act, but the Guide does not oblige the employer to do so. Risk assessment act is a mandatory internal document describing the work process and identifying health and safety risks associated with each job within the employer’s organizational structure, as well as the measures for dealing with those risks. When assessing risks associated with home-based jobs, those related to the work environment, working in front of the screen, fire outbreak and mental health of the employee, should be especially considered. To that end, the Guide provides a checklist, which is a good starting point in planning the implementation of the OH&S measures.
Although the Guide is not legally binding, its recommendations, and especially the checklist, will provide useful information for the employers when determining the level of their OH&S compliance in the context of remote work. The Guide also offers predictability in terms of what the authorities may be looking for when investigating compliance.
Emergency times aside, continuous development of technology and the global trend of adopting flexible work regimes assure us that remote work is here to stay long after we have successfully tackled COVID-19. It is imperative to provide additional clarity to the remote work-related issues currently spurring controversy, as well as to carefully adapt the legal framework so it can facilitate a temporary switch to remote work in exceptional circumstances and e-delivery of employment-related documents.
It is crucial that these issues are not left out of the long awaited new Serbian Labour Law and the OH&S Law, both of which are optimistically planned to be adopted by the end of the year. In the meantime, employers are stuck with the annexing procedure as the only lawful way to administer the switch to remote work. However, should the circumstances force another state of emergency instigating the need of a swift reaction, we can expect the Serbian Government would step in with a regulation, or a similar enactment, providing a temporary solution, as was the case in spring of 2020.