In the context of the current fear of the coronavirus, more and more employers, especially in the service industries related to gastronomy, tourism, hospitality and entertainment, face declining turnover and a decline in the number of customers. In such a situation, some of them try to temporarily close their premises, sending employees on forced holidays. It is worth considering whether you can send an employee on forced leave due to the coronavirus.
Can an employer send an employee on compulsory vacation?
Running your own business and hiring employees involves risks. According to the regulations, it is the employers who bear the consequences of personal risk (related, for example, to the fact that employees may not appear for work due to illness), economic risk (caused by changes in the economic situation or financial liquidity of contractors, on which the payment of employees’ wages cannot depend) or economic (under which the employer is responsible for any damage caused by the employee to third parties). The result of such a risk distribution and burdening the employer with it is also a situation when, for various reasons, not attributable to employees in his company, there is less traffic, caused by a smaller number of customers or orders.
Remember that annual leave is a privilege of an employee and not an obligation. This means that, as a rule, the employee has an influence on when and to what extent the leave is granted, with some exceptions, which will be explained later in the entry. The right to leave is regulated in Art. 152 of the Labor Code (hereinafter referred to as the Labor Code), and the method of planning and granting holidays is regulated in Art. 163 of the Labor Code
When can an employer send an employee on forced vacation?
Only in exceptional cases can the employer force his employees to take advantage of the vacation entitlement, and the worries about the virus are undoubtedly not theirs.
This is the case when the notice period is running, where the employer may decide that it prefers to send the employee on vacation and avoid having to pay the vacation equivalent. Pursuant to Art. 1671 kp:
„During the period of notice of termination of the employment contract, the employee is obliged to use the leave he is entitled to, if the employer grants him leave during this period. In this case, the length of the leave granted, with the exception of the overdue leave, may not exceed the length resulting from the provisions of Art. 1551 kp.”
Another, exceptional case, when the employer may decide on the date and length of the holiday leave on a one-hand basis, is the outstanding leave. Pursuant to Art. 168 of the Labor Code, unused leave within the period determined in accordance with Art. 163 should be granted to the employee by 30 September of the following calendar year at the latest, what is more, failure to grant the employee leave by this date is an offense against the employee’s rights (art. 282 § 2 kp).
Employer’s rights related to the decision to temporarily close the enterprise.
However, the employer may decide that in the absence of contractors or orders (caused, for example, by fear of the coronavirus), employees will not perform their work and do not have to come to work. This situation, the so-called downtime and has been regulated in Art. 81 § 1 of the Labor Code, according to which:
“An employee for the time of non-performance of work, if he was ready to perform it and suffered obstacles for reasons relating to the employer, is entitled to remuneration resulting from his personal grade, determined by the hourly or monthly rate, and if such a component of remuneration has not been separated in determining the remuneration conditions – 60 % of salary. In each case, however, the remuneration may not be lower than the amount of the minimum remuneration for work, determined on the basis of separate regulations. “
This situation is undoubtedly the case and is similar to the downtime regulated in the labor code. This means that while the employer is not able to send his employees on compulsory leave, he may release them from their work obligation and limit the amount of remuneration paid to them.