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COVID-19

Viimati uuendatud: 13.11.2020


The Labour Inspectorate of the Republic of Estonia is calling on all employers to follow the advice of the Health Board in connection with the prevention of the spread of COVID-19. Disinfectants and personal protective equipment should be used at the place of work. Please see the information provided by the Ministry of Foreign Affairs, if you should stay in self-isolation upon arrival in Estonia. During the obligation of self-isolation it is forbidden to go to work!

At the moment, no special measures have been established in employment relations, but the Government of Estonia may establish them at any time. It is not known at this time when or which special measures will be introduced. Therefore, we provide explanations based on the current regulation of the Employment Contracts Act and the Occupational Health and Safety Act.

Questions and answers in this article:

Is it permitted to use section 37 of the Employment Contracts Act, i.e. reduction of wages for up to three months due to economic circumstances which are out of the employer’s control? If so, when? 

The spread of the coronavirus is one of the unforeseeable circumstances which allows the employer to unilaterally reduce the employee’s workload and their remuneration for three months based on section 37 of the Employment Contracts Act if payment of the agreed wages is unreasonably burdening for the employer. The wages may be reduced no further than the minimum wages established by the Government of the Republic of Estonia (584 euros per month or 3.48 euros per hour). If the employer reduced the wages in April, May and June 2020, then until April 2021 the reduction of the wages on the basis of section 37 of the Employment Contracts Act can no longer be applied.

Reduction of wages based on section 37 is, however, only permitted in certain situations:

  • If an employer, due to unforeseen economic circumstances beyond its control, fails to provide an employee with work to the agreed extent (this does not include seasonal changes in the workload).
  • If payment of the agreed wages would be unreasonably burdensome for the employer. For example, wages may not be reduced if the employer is unable to provide work in the agreed extent but has enough finances for payment of the wages and there is no actual need for changing the employee’s wages. 

Please also see the following articles:

How is section 37 of the Employment Contracts Act, i.e. reduction of wages for up to three months due to economic circumstances which are out of the employer’s control, applied and can the employer cancel the employment relationship? 

For the reduction of wages, the employer must first check if they can offer other work to the employee. If there is no other work to offer of if the employee rejects the other work, the employer must notify the employees’ representative or, if there is no employees’ representative, the employees directly of the planned reduction of wages at least 14 calendar days in advance. The employees will thus have an opportunity to have their say. They must present their opinions to the employer within seven calendar days after receiving the notice. 

If the employees do not consent to the reduction of wages, they may cancel the employment contract by notifying the employer thereof five working days in advance. Upon termination of the employment contract, the employee will receive the so-called final settlement, i.e. the wages earned and compensation for unused annual holiday which has not expired, as well as compensation in the extent of their one month’s average wages. 

Please also see the following articles:

 

Is it permitted to reduce the wages of foreign employees pursuant to subsection 37 (1) of the Employment Contracts Act and pay the minimum wage established by the Government of the Republic?

Section 37 of the Employment Contracts Act, i.e. reduction of wages, cannot be applied to foreign employees who are subject to the wage requirement arising from the Aliens Act, as this would create a conflict with the Aliens Act. The Police and Boarder Guard Board have clearly stated regarding this issue that there are currently no special orders applicable to the employment of foreigners. Thus, the Aliens Act must still be followed and the person must receive the wage prescribed by the wage requirement.

However, if changing the work load has been agreed with the foreigner, the person must receive the hourly wage based on the wage requirement depending on their work load. Further information about the payment of wages to foreigners can be obtained from the migration consultants of the Police and Border Guard Board, whose contact details can be found here: https://www.politsei.ee/en/migration-consultants.

Will permanent lay-offs be considered?

If it becomes clear that the situation is not improving and the employer is unable to provide work or pay the remuneration even at a reduced rate, lay-offs may be considered. A lay-off is the extraordinary cancellation of an employment contract by the employer due to economic reasons. Lay-offs become necessary if it is impossible to maintain the employment relationship under the agreed terms and conditions due to reduced volume of work or reorganisation of work or no work being available for another reason. Lay-offs also occur in the case of cessation of the employer’s operations, the employer being declared bankrupt, or completion of the employer’s bankruptcy proceedings without declaring bankruptcy due to scaling back of the employer’s operations. In order to lay off the employee, the employer must submit a cancellation application to the employee in a format which can be reproduced in writing and explain why the employment contract is terminated. 

In the event of a lay-off, the employer must observe the terms of advance notice specified in subsection 97 (2) of the Employment Contracts Act. The required term of advance notice depends on the length of the employee’s employment with the employer. The employer must give the employee advance notice of extraordinary cancellation if the employee’s employment relationship with the employer has lasted:

  • less than one year of employment – no less than 15 calendar days,
  • one to five years of employment – no less than 30 calendar days,
  • five to ten years of employment – no less than 60 calendar days,
  • ten or more years of employment – no less than 90 calendar days. 

The employer must keep in mind that if the period of advance given to the employee is shorter than laid down by the law or if the requirement to give advance notice is not observed, the employer must pay compensation to the employee. In this case, the employer must pay to the employee their average remuneration per working day for the calendar-based working days which remain within the period of advance notice and by which the period of advance notice given to the employee was shorter than required. 

In the event of termination of the employment contract due to a lay-off, the employer must pay the so-called redundancy payment to the employee in addition to the final settlement in the amount of the employee’s average remuneration for one month. If the employee's employment relationship with the employer has lasted for five or ten years, the employee is entitled to receive insurance benefits from Eesti Töötukassa (https://www.tootukassa.ee/eng/content/subsidies-and-benefits/redundancy-benefit).

 

Can the employer retract a lay-off?

A notice for cancellation of an employment contract is an expression of will with a legal consequence – termination of the employment contract. Pursuant to subsection 69 (1) of the General Part of the Civil Code Act, an expression of will enters into force upon receipt This means that if the employee has received the cancellation notice submitted by the employer, it has become valid and the employment relationship will end based on the notice. Therefore, the employer can only retract a cancellation notice submitted to the employee with the employee’s consent and if the employee does not consent, the employment relationship will end by laying off as specified in the notice.

There is only one exception. An expression of will is not deemed submitted if the recipient of the expression of will receives an expression of will which withdraws the initial expression of will before or together with receiving the initial expression of will. This is, however, only possible in a situation in which the notice for cancellation of an employment contract is sent by e-mail or mail, i.e. the expression of will is communicated to a person who is not immediately present which provides an opportunity to react quickly and notify the recipient before arrival of the cancellation notice that the notice has been withdrawn. In most cases, however, there is not enough time for doing this and the notice for cancellation of the employment contract will become valid at the moment when it is received by the employee.

The employee’s consent, incl. signature is not required for a notice for cancellation of the employment contract to become valid. Receipt of the notice is sufficient and, in the event of a dispute, the employer must be able to prove that they have delivered the cancellation notice to the employee.

Are there any differences for single-employee companies?

There are no differences for companies with only one employee. All conditions arising from the Employment Contracts Act apply to the employee. 

Can the employer declare holiday without pay etc. to make the employees stay at home without pay?

If the employee has returned from a high-risk area and they are subjected to restrictions on movement for 10 days, the employer and the employee must agree on how the employee will continue to work. A certificate of incapacity to work is not issued to an employee without signs of illness. The employer is not obliged to pay the employee an average salary during the period of the restriction of freedom of movement.

The best option would be allowing the employee to work from home, i.e. agree on teleworking. If this is not possible, however, the parties must reach an agreement. 

The parties must agree on holiday without pay. If an agreement is reached, the employee may use holiday without pay. The parties may also agree on using annual holiday with pay.

Can the employer change the holiday schedule and make special arrangements for paying the holiday pay? 

Under subsection 69 (4) of the Employment Contracts Act, holiday schedules may be changed by agreement between the employer and the employee. Therefore, if the employer and the employee reach an agreement on changing the holiday schedule, the holiday schedule can be changed in accordance with the agreement. 

The employer cannot lay down special rules for the payment of holiday pay and it must comply with section 70 of the Employment Contracts Act. The holiday pay is calculated on the basis of the average salary of the employee, that is, the salary they have earned in the last six months. If the employer pays the employee less holiday pay than prescribed by law, the employee has a claim against the employer for the payment of the holiday pay, which can also be referred to the labour dispute authority (i.e. the court or the labour dispute committee). The period for claiming holiday pay is four months from the time when the person became or should have become aware of the violation of their right (section 31 of the Employment Contracts Act).

Will the amount of the wage subsidy be taken into account in the calculation of the holiday pay?

Pursuant to subsection 191 (5) of Regulation no. 130 of the Government of the Republic ‘Employment programme 2017–2020’, the wage subsidy is interpreted as a wage paid by the employer which is paid to the employee by the Unemployment Insurance Fund in the name of the employer and at the expense of the Unemployment Insurance Fund. Holiday pay is calculated based on the wage of the last six months before the holiday. Thus, as the wage subsidy is deemed the employee’s wage, it will be taken into account in the calculation of the holiday pay. 

Will the reduced wage paid pursuant to subsection 37 (1) of the Employment Contracts Act be taken into account in the calculation of the holiday pay?

Holiday pay is calculated based on the wage of the last six months before the holiday. Thus, as the reduced wage is the employee’s wage, it will be taken into account in the calculation of the holiday pay.

Will the reduced wage paid pursuant to subsection 37 (1) of the Employment Contracts Act be taken into account in the calculation of redundancy   compensation? 

Redundancy   compensation is calculated on remuneration earned and become collectable to the employee during the 6 months preceding the month when the calculation is done. The period during which the employee was paid a reduced salary is excluded from calculation of redundancy compesation and also remuneration for the less notified time.

For example, the employee is laid off on 6th of October and they were paid a reduced salary on the basis of subsection 37 (1) of the Employment Contracts Act in April, May and June. The reducancy compensation is based on remuneration earned from April until September, but since the period included a reduced salary, then calculation is only based on remunarion earned in July, August and September.

May I refuse to go to work?

An employee’s obligation in an employment relationship is to work under the terms and conditions agreed. If there are no circumstances due to which the employee may not go to work (eg sick leave, annual holiday), then the employee cannot refuse to go to work.

For example, if an employee returns from a trip abroad, he or she can go to work if it is absolutely necessary and a COVID-19 test is performed immediately upon arrival in the country and the test is negative. Until the result of the test is known, the person must be in complete self-isolation. 

What does the employer have to do if the employee is unable to come to work due to mobility restrictions? 

If the employee has returned from a high-risk area and they are subjected to restrictions on movement for 10 days, the employer and the employee must agree on how the employee will continue to work. A certificate of incapacity to work is not issued to an employee without signs of illness. The employer is not obliged to pay the employee an average salary during the period of the restriction of freedom of movement.

In such a situation, the agreements between the employee and the employer must be followed. For example, the parties may agree:

  • teleworking;
  • changing work tasks so that the employee can perform work tasks in the form of telework;
  • a longer holiday period before the start of the holiday, which also includes the period of restriction of freedom of movement;
  • other agreements. 

The employer may allow an employee to return to work after returning from a trip abroad only if the employee performs urgent and unavoidable duties at the employer's decision and has tested negative at least once for COVID-19 upon arrival in Estonia and follows measures established by the Government of Estonia or the Health Board to prevent the spread of a possible infectious disease and shall take all possible measures to prevent the spread of an infectious disease. If the employee has taken 2 tests and the results are negative, then the 10-calendar-day movement restriction no longer has to be complied with.

 

If my employer has reduced the wages to a minimum rate and my workload is very small, am I allowed to take on another position somewhere else? 

Pursuant to the Employment Contracts Act currently in force, it is not forbidden for an employee to work for several employers. Therefore, an employee is allowed to work for more than one employer at the same time. It is important to remember that the employee must be able to perform all the employment contracts they take on. Therefore, the employee must take into account that by working, for example, for two separate employers, they must be able to carry out the occupational duties for both of them.

My employer is forcing me to file a sick leave certificate, but I am not sick. Do I have to comply? 

The employer cannot require the employee to take a sick leave. Pursuant to the information on the website of the Health Insurance Fund, a sick leave certificate can be opened in addition to the usual illnesses if the employee has contracted COVID-19 or if the employee has been in close contact with a person diagnosed with COVID-19. Close contact is a person who lives with, is permanently in the same place of residence as the person diagnosed with COVID-19, or has been in close contact in any other way.

More information benefits for incapacity for work is available at  https://www.haigekassa.ee/en/people/benefits/benefits-incapacity-work

Can the wages of healthcare professionals whose wages are fixed with a collective agreement be reduced pursuant to section 37 of the Employment Contracts Act to the minimum rate established by the Government of the Republic?

Pursuant to subsection 37 (1) of the Employment Contracts Act, an employer may, for up to three months over a period of 12 months, reduce the wages to a reasonable extent, but not below the minimum wage established by the Government of the Republic, if payment of the agreed wages would be unreasonably burdensome to the employer or if an employer, due to unforeseen economic circumstances beyond their control, fails to provide an employee with work to the agreed extent. 

Even though, in this case, the wages of employees are fixed in a collective agreement, an employer has the right to reduce the wages to a minimum rate as established by the Government of the Republic (584 euros per month, or 3.48 euros per hour) pursuant to section 37 (1) of the Employment Contracts Act. Whereas the circumstances described in subsection 37 (1) of the Employment Contracts Act are and must be extraordinary, e.g. they must meet certain conditions (economic circumstances beyond the control of the employer), it is also allowed to reduce the wages of employees whose wages are fixed under a collective agreement to a minimum rate established by the Government of the Republic. We will hereby bring your attention to the fact that pursuant to subsection 37 (3) of the Employment Contracts Act, an employee has the right to refuse to perform work in proportion to reduction of the wages.

If I get infected with COVID-19 at work, is it an accident at work or do I have to go on sick leave? 

An occupational accident is damage to the health of an employee or death of an employee which occurred in the performance of a duty assigned by an employer or in other work performed with the employer’s permission, during a break included in the working time, or during other activity in the interests of the employer. Damage to the health or death which occurred in the cases listed but which is not in a causal relation to the work of the employee or the working environment is not deemed to be occupational accident (subsection 22 (1) of the Occupational Health and Safety Act). Occupational accidents are considered to be so-called sudden health damage due, for example, falls, but also due to poisoning caused by the inhalation of chemical vapors. 

A disease, such as coronavirus, may be a work-related disease. Diseases related to work are divided into two – work-related diseases and occupational diseases. An occupational disease is a disease caused by a working environment hazard or the type of work mentioned in the list of occupational diseases. A work-caused disease is a disease caused by a risk factor in the working environment that is not considered an occupational disease. 

Coronavirus may be an occupational disease within the meaning of subsection 3 (7) of Regulation No. 66 of 9 May 2005 of the Minister of Social Affairs, ‘List of Occupational Diseases’, in accordance with which occupational infectious diseases and occupational parasitic diseases are other infectious and parasitic diseases caused by biological hazards of the working environment. Coronavirus would be classified under other occupational infectious diseases. 

If you suspect that your illness may be due to work, i.e. you got sick while performing your duties at work, tell your doctor. A family doctor or other doctor who suspects that the employee may have an occupational disease will refer the person to the occupational health doctor for diagnosis of the occupational disease. The occupational health doctor ascertains the employee’s state of health and collects data on the employee’s working conditions and the nature of the work. The decision as to whether the disease is due to work or not is made by the occupational health doctor.

An employee was sent on a business trip, but is unable to return after performing their occupational duties. Is the additional time spent abroad considered a business trip and is the employer obligated to keep paying the daily allowance? 

If an employee is sent on a business trip, the employer is obligated to pay the employee a daily allowance at least in the sum of an established minimum rate (22.37 euros) for the entire time the employee spends abroad. This obligation is in force under the current circumstances as well: if an employee is sent abroad to a location that is not their usual workplace, the employer is obligated to pay the daily allowance. This obligation remains in force even if the employee is not performing their occupational duties because the employer is unable to assign any (e.g. an employee is on a standby).

If an employee and an employer agree that the employee will use their vacation days while abroad (e.g. they agree to change the annual holiday schedule or agree on the employee taking unpaid leave) or the employee will telework abroad, then the employer is not obligated to pay the daily allowance.

Do I have to work from home after a business trip?

If the employee has returned from a high-risk area and they are subjected to restrictions on movement for 10 days, the employer and the employee must agree on how the employee will continue to work. A certificate of incapacity to work is not issued to an employee without signs of illness. The employer is not obliged to pay the employee an average salary during the period of the restriction of freedom of movement.

In such a situation, the agreements between the employee and the employer must be followed. For example, the parties may agree:

  • teleworking;
  • changing work tasks so that the employee can perform work tasks in the form of telework;
  • a longer holiday period before the start of the holiday, which also includes the period of restriction of freedom of movement;
  • other agreements.

The employer may allow an employee to return to work after returning from a trip abroad only if the employee performs urgent and unavoidable duties at the employer's decision and has tested negative at least once for COVID-19 upon arrival in Estonia and follows measures established by the Government of Estonia or the Health Board to prevent the spread of a possible infectious disease and shall take all possible measures to prevent the spread of an infectious disease. If the employee has taken 2 tests and the results are negative, then the 10-calendar-day movement restriction no longer has to be complied with.

 

Külastusi 1928, sellel kuul 1928

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