5. Managing COVID-19-Related Employee Issues
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
Employees affected by COVID-19 will be subject to the rules that are generally applicable in case of sick leave.
Absences due to sickness are justified and if the absence extends for more than one month the employment contract is deemed to be suspended.
The employee is entitled to sick leave allowance (paid by the Social Security), the amount of which will vary between 55% and 75% of the reference salary amount. Sick leave allowance entitlement starts on the first day of absence (unlike the general rule that provides that the allowance is only payable after the third consecutive day of sick leave).
The employee must comply with prophylactic isolation when there is a serious risk to public health, confirmed by the health authority. This situation is deemed equivalent to sick leave but in this case the employee is granted sick leave allowance equivalent to his or her full salary (100%). Nevertheless, if remote work is possible, the employee in prophylactic isolation will keep working, remotely, in which case salary will be due as when working at the employer premises. If, during the prophylactic isolation period the employee is diagnosed to be infected with COVID-19 then the situation will be converted into a sickness leave and sickness leave allowance will be payable, instead of the full prophylactic isolation allowance.
Employees that are absent from work to provide assistance to their child - children under 12 years old or, regardless of age, with a disability or chronic illness that are subject to prophylactic isolation are justified and employees are entitled to receive an allowance – for up to 14 days - .
Absences of employees that need to stay at home to look after children under 12 years old, or regardless of age with a disability or chronic illness, as a result of on-site school and extracurricular activities at a school or social assistance facility for early childhood or disabilities having been suspended. are justified, if employees cannot perform their job remotely, from home. Employer – as in other cases of absence - will not have to pay full the salary (except if employee works remotely, in which case, he/she will not be absent from work) but employees are granted an allowance equal to 2/3 of their base salary, half of which is borne by the employer. The other half is borne by the Social Security, subject to a minimum amount equal to EUR 635 and a maximum of EUR 1905. The Social Security portion is delivered to the employer who pays the full assistance amount to the employee.
Only one of the parents may be absent and receive the financial assistance, regardless of the number of children and if one of the parents can perform his or her work remotely, then the other may not benefit from this exceptional assistance.
Employees who fear infection and refuse to work.
Where the case of offices or premises being forced to close does not apply and the employer has to meet all obligations relating to adequate SST protection in the current pandemic circumstances, and if the employee has no justifiable basis to do so (only the mere theoretical fear of infection), the employee cannot refuse to work.
In the event of refusal, the general rules on unjustified absences will apply, this also leading to disciplinary infraction.
It should be noted that nothing prevents employer and employee from agreeing on unpaid leave for a specific period or even being excused from work, without loss of salary.
Employees affected by immuno-suppression situations and those suffering from chronic disease - cardiovascular patients, those affected with chronic respiratory diseases, cancer patients and those suffering from renal - may justify their absence from work, by means of a medical declaration, as long as they cannot carry out their activity through remote work. This medical declaration must certify the worker's health condition that justifies the employee’s special protection.
Disclosure of employees who are infected.
Under the data protection supervisory authority guidelines, employers themselves must strictly limit the processing of staff health data and collection and record of staff behaviour risk information (that might indicate COVID-19 infection) in scope the organizational safety and health services and the health authority (DGS) specific guidelines (particularly those on the contingency plans).
In such context OSH health professionals may:
- Evaluate employee health condition;
- Request relevant information to assess employee’s ability to render work in terms consistent with SST rules;
- Adopt adequate proceedings to safeguard staff and third parties’ health, whenever detecting symptomatic employees or in other justified cases.
The type and frequency of health evaluation measures must be determined by the OSH medical professionals according to: (i) scientific criteria adopted in their own clinical decisions; and (ii) national health authority guidelines.
Measures must be aligned with DGS and other health authority guidelines – on how employers can protect their employees and what measures they should take in the workplace to prevent further spread of the disease – and employers should not call upon themselves measures that result in the processing employee health data without being supported on specific legal provisions or on competent authority orders.
There are various aspects resulting from the steps companies must reflect in the contingency plan, which could involve procedures that require the processing of employees' health information.
By way of example, the company is required to establish an alerting procedure in case of employees with symptoms and epidemic contacts (consistent with the definition of a suspected case of COVID-19), “i.e., how to proceed with internal communication between:
- The symptomatic employee – or an employee identifying a symptomatic fellow employee within the company - and his or her direct line manager and the employer (or employer representative);
- (Internal) process for recording contact with the Suspected Case".
The CT, as a rule, prohibits employers from requiring employees to provide information on their private life or their health. However, the provision of information on employees' state of health, as such and in light of the GDPR, constitutes a special category of personal data, which is covered by a general principle of prohibition of processing. Processing this information is permitted when one of the exceptions to the prohibition, as listed in Article 9 of the GDPR, occurs and which, for this reason, is tantamount to a legitimate condition for the employer to be able to collect this information.
According to Article 281 of the CT and the Legal Framework Promoting Occupational Safety and Health, particularly Article 15, on the one hand employers have a duty to protect the safety and health of their employees and to adopt the measures required for this purpose and, on the other hand, employees themselves have a duty to respect the orders and instructions from their employers in this regard. Therefore, the provision of information by the employee on his or her health condition and/or potential contact with people infected with COVID-19 falls within the scope of the exception set out in Article 9(2)(b) of the GDPR which permits the processing of health data when “required for the purposes of meeting obligations and exercising the specific rights” of the employer, as data controller, or of the employee, as data subject, in relation to labour, social security and social protection legislation.
Here, as with the implementation of the measures set out in the Contingency Plan involving the collection of information regarding employees, the employer must be limited to collecting strictly necessary data – which directly results from the regulations or guidance in question or decided by the authorities – for the specific purposes already indicated, and must not retain such data for longer than strictly necessary for same purposes, erasing them immediately afterwards. It also requires employers to provide the employees with a set of information on the processing of the collected personal data (including stating the purposes of data collection, legal basis for processing, categories of recipients, criteria used to define the data retention periods, among others) in order to comply with the information duties arising in their capacity as data controller for the processing of personal data under the regulations on personal data protection.
The measures to be implemented must always take into account what has been defined in the contingency plan which, in turn, must already exist and have been prepared in accordance with the Guidance mentioned above, specifically the procedures to be followed in the event of a suspected case (point 6 of DGS Guidance 06/2020) and the monitoring procedure for close contacts (point 8 of the same Guidance).
 Creche and kindergarten school have meanwhile reinitiated