Reinstitution of Social Protection Measures in the Context of Spread of Coronavirus SARS-CoV-2 and Change of Legal Provisions on Work Relations

On October 4, two emergency ordinances became effective and they institute social protection measures in the context of spread of the coronavirus SARS-CoV-2, and namely:

Emergency Ordinance 110/2021

What is the social protection measure reinstituted by the Government Emergency Ordinance 110/2021?

• days off are granted to one of the parents for the supervision of children of up to 12 years included, as well as to the parents taking care of children or adults with handicaps registered with a pre-university education unit, including pre-school early education.
• days off are granted also to the parents of the children of up to 18 years, registered with education units, if they are in one or more of the following situations: (i) they are part of a risk group, and namely the one diagnosed with severe chronic respiratory diseases, cardiovascular diseases, severe obesity, diabetes mellitus type I, inflammatory diseases, immune/auto-immune diseases, rare diseases, hereditary metabolism diseases, disabilities, immunosuppressive treatment or other chronic conditions; (ii) they are part of a risk group, respectively they are diagnosed with conditions associated to moderate or severe immunodepression, had a transplant, have oncological diseases with immunosuppressive treatment, primary or acquired immunodeficiencies or have another types of immunosuppressive treatments; (iii) they live together with a person diagnosed with conditions associated to moderate or severe immunodepression, had a transplant, have oncologic diseases with immunosuppressive treatment, primary or acquired immunodeficiencies or have other types of immunosuppressive treatments.
• days off are granted also to one of the parents who takes care, supervises and maintains an adult person with serious handicap or serious handicap with personal assistant, only if this benefits of day services whose activity is limited or suspended.

In what conditions and for what period do the provisions of the Government Emergency Ordinance 110/2021 apply?

• they apply in case of limitation or suspension of the didactic activities implying the physical presence of the children in the education units and in the pre-school early education units, during the state of alert, as well as after its cessation, but no later than the completion of the courses of the school year 2021-2022.
• limitation or suspension of the didactic activities implying the physical presence of the children in the education units means the reduction of the frequency of the children’s participation in the school courses conducted in the education units and the use of technology and internet or of other alternative means of education.
• no days off are granted during holidays.

What conditions should parents meet to benefit from the provisions of the Government Emergency Ordinance 110/2021?

• the parents who may benefit from days off should meet cumulatively the following conditions: (i) have children of up to 12 years included/take care of children or adults with handicap registered with a pre-university education unit, including pre-school early education units; (ii) the other parent does not benefit from days off or the parent requesting the granting of days off is in one of the situations provided by art. 3 of Law no. 277/2010; (iii) the position held does not allow work from home or telework.
• for the purpose of the Government Emergency Ordinance 110/2021 parent means: a) natural parent; b) adopter; c) the person to whom the child/children is/are entrusted for adoption; d) the person who is the foster parent of the child or her/his tutor; e) the person designated pursuant to art. 104, paragraph (2) of Law no. 272/2004; f) the parent or the legal representative of the adult person with handicap registered with an education unit.

How are the days off granted?

• any paid days off are granted at the request of the parent submitted to her/his employer. Any days off are granted from the date when the request is submitted, but not sooner than the date when it is decided to limit or to suspend the didactic activities.
• any parents meeting the conditions provided by the Government Emergency Ordinance 110/2021 are entitled to paid days off during the entire period when it is decided to limit or suspend the didactic activities implying the children’s physical presence in the education units.

What is the value of the allowance for the days off and how is it granted?

• for each day off granted an allowance amounting to 75% of the basic salary corresponding to a business days is paid, but not more than the correspondent per day of 75% of the gross average salary income used when substantiating the state social insurance budget, which for 2021 is of Lei 5,380.
• the allowance is expressed in gross amount and subject to taxation and payment of the social insurance and health insurance contributions, as well as to the payment of the insurance contribution for work for the salary incomes or incomes assimilated to these.
• the tax and the social insurance and health insurance contributions, as well as the insurance contribution for work related to the allowance shall be paid by the employer.
• any allowance for each day off granted shall be paid from the chapter related to the personnel expenses from the income and expenditure budget of the employer.
• any amounts for the payment of the allowance shall be paid from the Guarantee Fund for the payment of the salary receivables only for the period for which the days off are granted.

Emergency Ordinance 111/2021

What is the social protection measure reinstituted by the Government Emergency Ordinance 111/2021?

• the measure of technical unemployment is reinstituted and this implies the granting of an allowance to the employees of any employers who interrupt their activity temporarily in the context of increase of the incidence of the spread of the coronavirus SARS-CoV-2.

Who and for what period benefits from the provisions of the Government Emergency Ordinance 111/2021?

• the employees of the employers who interrupt their activity temporarily, fully or partially, in the context of increase of the incidence of spread of the coronavirus SARS-CoV-2 and of the measures for the reduction of the impact of the risk type provided by the Government decisions for the prolongation of the state of alert in the territory of Romania, for the entire period of the temporary suspension of the individual employment agreement at the employer’s initiative, pursuant to art. 52, paragraph (1), letter c) of the Labor Code, as a consequence of the effects caused by the coronavirus SARS-CoV-2.
• the employees of the employers whose activity was suspended as a consequence of the epidemiological investigation conducted by the county public health directorates, and by the health directorate of Bucharest Municipality, except for the employees on medical leave and who receive the related social insurance allowance.
• other categories of persons who obtain incomes, as follows: a) professionals regulated by art. 3, paragraph (2) of Law no. 287/2009 on the Civil Code, republished, as subsequently amended; b) natural persons who obtain incomes exclusively from copyright and related rights, as regulated by Law no. 8/1996 on copyright and related rights, republished, as subsequently amended and supplemented; c) persons who have concluded individual employment conventions under Law no. 1/2005 on the organization and functioning of cooperation, republished, as subsequently amended.
• the provisions of the Government Emergency Ordinance 111/2021 apply for the period October 4, 2021 – December 31, 2021.

What is the value of the allowance for the days off and how is this granted?

• the allowances from which the employees benefit shall be established at 75% of the basic salary corresponding to the job occupied and shall be incurred from the unemployment insurance budget, but not more than 75% of the gross average salary income provided by the State Social Insurance Budget and that for 2021 is of Lei 5,380.
• in case the employer’s budget destined to the payment of the personnel expenses permits, the allowance may be supplemented by the employer.
• the allowance shall be calculated for the number of days when the activity has been suspended, but not later than December 31, 2021.
• the allowance is subject to taxation and payment of the mandatory social contributions, according to the provisions of the Fiscal Code. The calculation, withholding and payment of the income tax, of the state social insurance contribution and of the health insurance contribution are made by the employer from the allowances cashed from the unemployment insurance budget. No insurance contribution for work is owed.

Cumulation of individual employment agreements

• if an employee has concluded several individual employment agreements out of which at least one agreement from which this obtains incomes at the level of the allowance is active for the period of suspension of the employer’s activity, this shall not benefit from the technical unemployment allowance.
• if an employee has concluded several individual employment agreements and all are suspended during the period of temporary interruption of the employer’s activity, this shall benefit from the allowance related to the individual employment agreement with the most advantageous salary rights.

How is the allowance granted?

• for the granting of the amounts necessary for the payment of the allowance, the employers shall submit by the electronic mail with the county and Bucharest employment agencies in whose area they have their registered offices (i) an application signed and dated by the legal representative, (ii) an affidavit, and (iii) the list of the persons that are going to benefit from this allowance, assumed by the employer’s legal representative.

On October 5, the Emergency Ordinance 117/2021 for the amendment and completion of Law no. 53/2003 – the Labor Code (Government Emergency Ordinance 117/2021) was published in the Official Gazette, and this brings the following amendments that will be applicable as of October 20, 2021, and namely:

Sanctioning of under-declared work

• under-declared work will be the granting of a net salary higher than the one constituted and recorded in the payrolls and in the monthly statement regarding the obligations of payment of social contributions, income tax and nominal record of the insured persons, transmitted to the fiscal authorities.
• it will be considered to be a minor offence, if not committed in such conditions as to be considered a major offence under the law, the granting of a net salary higher than the one recorded in the payrolls of the employee and in the monthly statement regarding the obligations of payment of the social contributions, income tax and the nominal record of the insured persons, transmitted to the fiscal authorities, and this shall be sanctioned by fine from Lei 8,000 to Lei 10,000 for each employee identified in this situation, without exceeding the cumulated value of Lei 100,000 lei.

Extension of the period when overtime may be compensated

• overtime may be considered compensated by paid days off in the next 90 calendar days after its performance, differently as compared to the 60 calendar days as provided by the current regulation.

The limit of the punishment by fine that may be imposed for undeclared work in the case of the part-time employees was increased

• acceptance to work of one or several employees in excess of the duration of the work time established in the part-time individual employment agreements shall be punished by fine from Lei 10,000 to Lei 15,000 lei for each person thus identified, without exceeding the cumulated value of Lei 200,000.

An employer’s deed consisting in the delayed payment of salaries shall be sanctioned

• it shall be considered to be a minor offence, if not committed in such conditions as to be considered a major offence under the law, the breach by an employee of the obligation of payment of the salary by more than a month as of the date of payment of the salary established by the individual employment agreement, by the collective bargaining agreement or by the internal regulations as the case may be and this shall be sanctioned by fine from lei 5,000 to Lei 10,000 for each person to whom the salary has not been paid, except for the situation when the employer is subject to Law no. 85/2014 on the procedures of prevention of insolvency and of insolvency, as subsequently amended and supplemented.

On October 5 Government Decision 1071/2021 for establishing the gross minimum basic salary on the country guaranteed to be paid was published in the Official Gazette

The gross minimum basic salary on the country guaranteed to be paid shall be increased

• as of January 1, 2022, the gross minimum basic salary on the country guaranteed to be paid, provided by art. 164, paragraph (1) of Law no. 53/2003 – Labor Code, is established in money, without including increments and other increases, at the amount of Lei 2,550 monthly, for normal working hours in the average of 167.333 hours per month, representing Lei 15.239/hour.
• the new Government Decision regulates the minimum salary at a unique value, eliminating the provision referring to the personnel employed on positions for which the high education level is set forth.
• the gross minimum basic salary on the country guaranteed to be paid for the constructions area has not been changed until this moment, this remaining at the amount of Lei 3,000 monthly, without including the allowances, increments and other increases, for normal working hours in the average of 167.333 hours a month, representing in the average Lei 17.928/hour.

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