On August 10, 2020, the Government Emergency Ordinance no. 132/2020 on support measures for employees and employers in the context of the situation caused by the spread of SARS-CoV-2 coronavirus, as well as on encouraging employment was published in the Official Gazette of Romania, Part I, no. 720/May 10, 2020 (hereinafter referred to as the “G.E.O. 132/2020”).
1. EMPLOYER`S POSSIBILITY TO REDUCE THE WORKING TIME (KURZABEIT)
By way of derogation from the provisions of art. 112 para. (1) of Law no. 53/2003 (the “Labor Code”), in the case of temporary reduction of the activity caused by a state of emergency/ alert/ siege, employers have the possibility to reduce the employees’ working time by at most 50% of the duration provided in their individual employment agreement, subject to informing and consulting with the trade union, the employees’ representatives or the employees, as the case may be, prior to communicating such measure to the employees.
Thus, employers may reduce the working time, by issuing a decision, for at least 5 consecutive working days. The employers have the obligation to establish the work schedule of the concerned employees, for the entire month. Such measure may be accordingly applied to work in shifts, as well as in the case of unequal working schedule.
Employer’s decision together with the working schedule, the distribution of working time per day and the related salary rights must be communicated to the employees at least 5 days before the effective application of the measure and must be registered with the general register of employees no later than the day before its entry into force.
The employees affected by this measure will benefit from all the other rights provided in their individual employment agreement or in the collective bargaining agreement, proportionally with the time effectively worked.
1.1 ALLOWANCE GRANTED TO THE EMPLOYEES
During the reduction of daily working time, the affected employees are entitled to an allowance set at 75% of the difference between the gross basic salary provided in their
individual employment agreements and the gross basic salary corresponding to the effectively worked hours as a result of the reduction of working time, in addition to their salary rights due for the effectively worked hours.
The allowance is borne by the employer and shall be paid to the employees on the date of payment of the salary. Subsequently, at the employer’s request, such allowance is settled from the unemployment insurance budget after the employer has fulfilled and paid its tax obligations related to the period for which the request of settlement is made. In case this allowance is not settled from the unemployment insurance budget, the employer is prohibited from recovering the allowance from the employees.
This allowance is an income of a salary nature and is subject to taxation and payment of social contributions, in accordance with the tax code.
If, during the same month, the employees obtain income both from salaries and the above-mentioned allowance, these shall be cumulated for tax purposes, in order to be granted the personal deduction.
The employer may reduce the working time and may request the settlement of the allowance if the following cumulatively conditions are met:
a) the measure affects at least 10% of the number of employees of the unit;
b) the reduction of the activity is justified by a decrease of the turnover of the month prior to the application of the measure or, at most, of the month preceding such a month, by at least 10% compared to the same month of the previous year.
This allowance may not be cumulated for the same employee with the measure of settlement of 41.5% of the salary (provided under Section 2 of this brief), with the active support measures granted according to art. I and III of the Government Emergency Ordinance No. 92/2020 or with the measures to support employers provided by the Law no. 76/2002.
1.2 RESTRICTIONS APPLYING DURING THE REDUCTION OF THE WORKING TIME:
(i) employers are prohibited from hiring new employees for performing activities identical or similar to those performed by employees whose working time has been reduced, as well as from subcontracting the activities performed by such employees. This prohibition applies also at the level of subsidiary, branch or other secondary offices defined as such by the Companies Law no. 31/1990;
(ii) employees affected by this measure are prohibited from working overtime for the same employer;
(iii) employees affected by this measure may not have their working schedule reduced based of the provisions of art. 52 para. (3) of the Labor Code;
The settlement procedure of the amounts, as well as the period for which employers may reduce the working time shall be established by a decision of the Government.
(iv) employer may not initiate collective dismissals;
(v) bonuses or additional benefits to the base salary may not be granted to managers of employers who applied the measure of reducing the working schedule of their employees based on the provisions of G.E.O. 132/2020.
1.3 APPLICABLE SANCTIONS
If, outside the reduced working time, the employer receives at work, including work under teleworking regime or from home, one or more employees, the employer may be sanctioned with a fine of 20,000 RON for each person thus identified, capped at the cumulative amount of 200,000 RON.
2. PARTIAL SETTLEMENT OF THE SALARY
Until December 31, 2020, but no longer than 3 months, for employees who conclude individual employment agreements for a fixed-term of up to 3 months, the employer may choose to settle from the unemployment insurance budget 41.5% of the salary for the days worked, for a working schedule of 8 hours/day, capped at 41.5% of the average gross salary provided by the Law no. 6/20202. Currently, the monthly gross average salary is of RON 5,429 (i.e. EUR 1,100).
Employers shall entirely pay the salary of such employees and can then recover the above-mentioned 41.5% amount from the National Employment Agency based on the following documents: (i) a statement on their own responsibility showing the fulfillment of the conditions provided above; (ii) the list of persons for whom the settlement is requested, , after the payment of the tax obligations related to income from salaries and assimilated to salaries.
