Leave from Work – Experience from the Coronavirus Era and an Amendment of the Labour Code
- Fučík & partneři
- Veronika Odrobinová
The leave from work is one of the basic concepts of labour law. In relation to the COVID-19 pandemic, this concept has been put to a test, because taking leave during this period began to show some specifics, which are usually not (so) relevant. The COVID-19 has shown, how important it is to react in a quick and flexible way with regard to circumstances, be they internal (an infected person directly at the company, lower demand) or external (government decree).
Who determines when leave from work will be taken
First, taking leave is ordered by the employer – it is therefore not up to the employee, when he “takes” leave. The employer is the one with the final say as to the time of taking leave from work, especially based on a written schedule of leave taking. This schedule requires approval from trade unions; if there are no trade unions at the employer, no approval is required. This document (written schedule) is a relic of the past and relatively frequently it is not compiled at all. At the time of the coronavirus, it showed, how non-flexible this concept is, because it is not always possible to plan an entire year in advance.
When ordering leave taking, the employer is bound by several obligations:
- Leave from work should usually be taken as a whole, so as to be used in the year, in which entitlement to it arose.
- Operating reasons on the part of the employer as well as legitimate interests of the employee are taken into account, however.
- One part of the leave must reach a minimum of two weeks in one piece.
- The date when leave is to be taken must be announced in writing at least two weeks in advance.
- If the employee agrees, it is possible to arrange it otherwise – but this has no impact on the obligation and statutory consequences, if the employer does not order the employee to take leave in the entire statutory scope even by June of the following calendar year. If the employee agrees, he may perhaps take leave on the very next workday, or he may take leave in the form of half-a-day at a time.
From the perspective of the coronavirus time, it was common that employers ordered their employees to take leave in days or sometimes half-days. While we see half-days as problematic already, with the consent of the employee it is possible. In this uneasy period, employees were cooperative and usually did not sabotage the employer's endeavour to make them take leave at the time, when there was not enough work. Here, the significance of operating reasons was logically accentuated by the extraordinary and unexpected situation; but even so it is not possible to ignore legitimate interests of the employee fully.
Leave from work and the Antivirus programme
If employees were taking leave, this was not an obstacle in work, so in this situation, employers were not entitled to support from the Antivirus A and B programme (at least to the extent, to which they ordered leave to be taken). Such employers may have had a right to support from the Antivirus C programme, if other conditions were met as well.
An as yet not fully revealed difficulty may be the fact that the time spent by caring after a minor under the age of 10 years is considered performance of work from the perspective of entitlement to leave from work. The age increase for entitlement to caregiver allowance (13 years) has not been reflected in the Labour Code. In cases when a minor under the age of 10 years is being cared for, the entire time spent by caring for such a child is considered performance of work and entitlement to leave arises during this time. In case of a child above 10 years of age but under 13 years, you receive support in the form of caregiver allowance, but you are not entitled to this time being included as performance of work.
Amendment of the Labour Code coming up – from 1 Jan 2021
In addition to this “baptism by fire”, though, a very radical change awaits the leave from work. With act no. 285/2020 Coll., an amendment of the Labour Code has come into force, which, among other things, radically changes the treatment of leave from work. Changes relating to leave from work will not take effect until 1 January 2021, in order to ensure a smooth transition. The new treatment of leave from work should mean a simplification of the legislation and it should also lead to removal of some injustice, especially in case of shorter working hours or uneven division of working time, when a day of leave may mean two or perhaps 12 hours of leave from work for an employee, depending on how long his shift was on the day of taking leave.
Leave per number of days worked is cancelled and the legislation continues to manage with leave per calendar year (in case of duration of the labour relation for 52 weeks) or a proportionate part of leave per calendar year. In order for at least a proportionate entitlement to leave from work to arise for the employee, he needs to work at least 4 weeks for the employer within the scope of the specified or shorter working hours.
Leave in hours
Entitlement to leave from work and its use is newly specified in hours, not in shifts (days). The minimum entitlement to leave from work remains at 4 weeks. If the employee has the weekly working time set at 40 hours and is entitled to 4 weeks of leave, his entitlement per calendar year reaches 160 hours. If he has shorted working time negotiated and works 20 hours per week, his leave per calendar year will be 80 hours.
Taking leave segments shorter than a shift is only possible in case the employee agrees and the segments must reach a minimum of one half of a shift (except in case of a “remaining part”).
Leave in case of some obstacles in work
The way, in which entitlement to leave from work is calculated, is also changing in case the employee is not working due to some obstacles in work. As for the range of obstacles in work, the legislation remains basically unchanged – some obstacles in work (maternity leave, temporary incapacity to work due to an occupational injury or an occupational disease) are considered performance of work in the full scope for the purposes of leave from work. For others, the leave is not shortened, but the formation of entitlement to leave from work is being limited – obstacles are included only up to a maximum of twenty times the specified/ shorter weekly working hours and at the same time the employee needs to work for a minimum of twenty times the specified/ shorter weekly working hours in the given calendar year. The leave can thus newly only be shortened in case of unexcused absences.
The option of transferring a part of entitlement to leave from work to the following year in limited cases is also newly being introduced. This was not possible previously.
The options for transfer of unused leave if you change employers in the course of the year have also been widened. Newly, it is possible even without the condition of the new and the old employment relation following immediately after one another (previously it was only possible to have non-working days in between).
How to prepare?
These changes will require relatively fundamental adjustment of the payroll systems, so that entitlement to leave from work and corresponding compensations are calculated accurately, or in order to establish, in what situations entitlement to leave from work does not arise. Given that the new rules will only apply from 1 January 2021, there is still enough time for the preparation. We definitely recommend not to neglect the preparation, however. In case you are interested, we are available for consultations.
GT Legal, advokátní kancelář, s.r.o.