Material realizat de Andreea Suciu, Managing Partner & Teodora Mănăilă, Associate
As of 15th of May 2020, the state of emergency declared in Romania will cease to apply and businesses are expected to make their first steps in relaunching activity after two months of harsh restrictions and social distancing measures.
As most people have spent the last two months indoor and teleworking, bookings have already started being made and online trafficking regarding hotel reservations and tourist attractions has increased following the declarations of the Romanian authorities that hotels and other accommodation facilities may reopen as of 15th of May and that travelling restrictions are also going to be lifted.
Nevertheless, while we would all like to go outside and enjoy a change of scenery, such rush to leave the house has consequently generated a lot of questions among employers, especially on the proper way to manage holiday requests.
Given such context, we have compiled the most important questions and answers regarding holidays following the scheduled lifting of national travelling restrictions.
- Can employers unilaterally order their employees to take their holiday?
As many businesses continue to be affected by the drop of activity due to the restrictions imposed by the Romanian administration, whilst others are preparing to recall employees back to the workplace, employers have become more and more interested on the one hand in the option of ordering leave unilaterally and on the other hand in avoiding the risk of too many employees’ taking vacation after the travel restrictions are lifted, as a means to ensure business continuity and/or reduce costs respectively.
The Romanian Labour Code states holiday leave must generally be taken during the calendar year in which the entitlement to leave arises according to the collective or individual schedule adopted following consultation with the trade union/ employees’ representatives or with each employee. Therefore, holiday leave must be taken based on the parties’ agreement and cannot be unilaterally enforced by neither party, employer nor employee.
Any such request imposed by one party risks being considered as acting in bad faith, such action from the part of an employee may be qualified as disciplinary misdemeanour, while such behaviour from the part of the employer may be qualified as abusive and may entail controls from the Labour Inspectors or even civil claims.
- Can employees unilaterally renounce their scheduled holiday?
As the tourism industry was one of the first and major markets affected by the travel restrictions and country lockdowns, many employees were left to spend their scheduled holiday within their apartments. Excited by national travelling restrictions being lifted, many employees have filed requests to their employers to have their holiday rescheduled.
As a rule, article 149 of the Romanian Labour Code prescribes that employees are obliged to take the holiday during the period in which it was scheduled.
Nevertheless, should the reasons supplied by the employee be beyond his/her control, we consider the employer must accept the request and jointly agree for a reschedule during the same year and, if such rescheduling is not possible, to carry it over within 18 months as of the end of the year the entitlement to leave arose.
- Can employers request employees to return earlier from their holiday?
The employer is entitled to recall an employee from holiday only in case of force majeure or urgent matters that require the employee’s presence at work, according to the Romanian Labour Code.
In this case, the employer must cover any resulting expenses incurred by the employee and his/her family and compensate the employee for any damages suffered because of the interruption of the leave.
- Holiday entitlement in case of reduction of working program to 4 days/week?
Although the provisions of the Romanian Labour no longer expressly regulate it, the duration of the holiday entitlement is established in proportion to the duration of work performed by the employee during the year, respectively the holiday entitlement is gradually acquired with the passing of each day of work.
Hence the reduction of the working program entails a decrease of the working time; the total duration of the annual leave will be reduced as well.
Consequently, employers must carefully determine the length of the holiday entitlement based on the effective number of days worked by the employee prior to approving any request for holiday.
- Holiday entitlement in case of technical unemployment?
Technical unemployment represents a case of suspension of the employment contract at the initiative of the employer. During such suspension of the employment contract, according to the Romanian Labour Code, as a rule, all terms in relation to the conclusion, amendment, execution or termination of the employment contract are suspended as well. Thus, any exercise of the rights in relation to the quality of employee is therefore suspended.
To put it in a nutshell, technical unemployment and holiday cannot be applied simultaneously, as one situation excludes the other. In order for employees to exercise their holiday entitlement, they must have their employment contract active. Likewise, no decision to implement technical unemployment shall be enforceable before the employee returns to work.
Furthermore, as technical unemployment represents a case of suspension of the employment contract, during which the employee does not work such period will not be taken into consideration when determining the accrued number of days of annual leave.
- What happens if the employee enters quarantine during holiday?
In the context of the current pandemic and the high degree of transmissibility of the coronavirus, it is possible that during the holiday the employee is suspected of being infected and is required to be placed in quarantine.
The Romanian Labour Code regulates that any case of quarantine represents a case of suspension by law of the employment contract, without providing additional regulation when such case superposes the holiday period.
Nevertheless, as such case represents a temporary incapacity to work, as the affected persons are given afterwards medical certificates for the period of quarantine, by interpretation of the applicable provisions in case of sick leave that occurs during holiday, if quarantine is to be imposed during holiday, the holiday will be interrupted and will be rescheduled after the end of the period of quarantine.
- Compensation in lieu of holiday. When is such compensation allowed?
Despite efforts to maintain businesses, many employers will also be required to implement operational cuts, thus leading to collective/individual dismissal procedures.
The termination of the employment contract represents the only case allowed by the Romanian Labour Code when the compensation in lieu of accrued holiday can take place.
When determining the number of leave days unused, employers must also pay attention to the rules concerning the carry-over period. Thus, where the employee cannot take the holiday the year it is granted, in full or in part, for justified reasons, the accrued days of holiday must be taken within a period of 18 months from the year following the one of the employee’s entitlement to holiday.
As a rule, any accrued annual leave will be forfeited if not used by the final day of the 18-months’ time limit. However, an employee cannot automatically lose his/ her acquired rights to paid annual leave because he/ she did not apply for leave.
On the other hand, if the employer proves that the employee deliberately and knowingly refrained from taking his/ her paid annual leave after having been given the opportunity to actually exercise his/ her right thereto, EU law does not preclude the loss of that right or, in the event that the employment relationship ends, the corresponding absence of an allowance in lieu [Court of Justice of the European Union, Judgments in Cases C-619/16 and C-684/16].
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