The outbreak of Novel Coronavirus (COVID-19) has become a worldwide pandemic, and based on the World Health Organization’s declaration that this is a public health emergency of international concern, and due to the growing number of infected people, Hungary declared a state of emergency on 11 March 2020. This allows the Government to issue decrees to modify acts, as well as to restrict specific rights of the citizens. Due to restrictions on free movement, all individuals should keep at least 1.5 meters distance from others (except with members of their own household), and the only people permitted to be in a restaurant or bar are the employees (and only take away food delivery is allowed). Furthermore, individuals cannot leave their homes except for exceptional reasons specified in the relevant Governmental Decree (e.g. leaving home for work or buying essential goods, outdoor activity or sports). Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
At time of writing there are no specific mandatory obligations for employers in respect of COVID-19. Nevertheless, there are general governmental decrees in respect of COVID-19 and a specific Information notice issued by the Hungarian Data Protection Authority (“NAIH”) on processing personal data related to the coronavirus epidemic. Additionally, on 18 March 2020 the Hungarian government announced that employment related COVID-19 Regulations can be expected, which may bring some changes.
In general, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like coronavirus spreading. Such advice may include:
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze.
- Put used tissues in the bin immediately.
- Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available.
- Try to avoid close contact with people who are unwell.
We further recommend notifying employees where they can access more information if they are concerned.
Based on NAIH’s guidance employers should prepare a so-called pandemic/business continuity action plan (“action plan”). The action plan should specify the preventive steps to be taken to reduce threats, measures to be taken upon the eventual appearance of the infection, preliminary consideration of the data protection risks of the measures applied, allocating responsibility within the organisation and building efficient and adequate channels of communication facilitating the provision of information to the employees.
As part of the action plan, a detailed information document must be drafted and made available to the employees covering the most important issues in relation to the coronavirus (i.e. the source of the infection, mode of spreading, period of incubation, symptoms, prevention). The employees must be informed who to turn to in case of infection (i.e. contact details of the company doctor).
According to the NAIH, employers are advised to reconsider making any business/service trips and events and the possibility of working from home must be ensured.
Can employers request or require information from an employee about potential or actual exposure to the virus?
In accordance with the NAIH’s Information, processing of personal data can be undertaken only if and to the extent that the purpose of data processing cannot be achieved by other means not requiring data processing. The employer should therefore examine whether there are efficient solutions that pose less threat to the privacy of data subjects, such as specifying basic hygienic measures and cleaning workplaces and offices more thoroughly (which both provide efficient solutions without processing of personal data).
Employers should draw the attention of employees to the employer’s general notice, which should require employees to report any potential connection with the virus (e.g. travelling to high risk countries) to the employer. If the employee reports potential connection to the virus or other suspicion of infection can be established by the employer, the employer can require the employee to complete questionnaires and can then record certain data including the identification data of the employee, the travel destinations and dates (even if the travel has been private) in case of high risk countries and any potential contact with potentially infected persons.
Information about an employee's health status is sensitive personal data and as such additional requirements and obligations apply to the processing of such data. Therefore, the medical history of the employee and medical documentation cannot be lawfully requested. Otherwise necessary health data can be processed based on legitimate interest and an exception under the GDPR.
Requiring medical checks for all employees (to be conducted or supervised by medical professionals) will not ordinarily be in compliance with data protection law. However, employees may be ordered to undergo such checks if (i) they are in positions that are particularly exposed to diseases; and (ii) the employee reports voluntarily; or based on the assessment of all relevant circumstances or the employer’s risk assessment. In this case, the legal basis for the medical check would be a legitimate interest.
Importantly, the position regarding European data privacy rules and their interpretation relating to COVID-19 is developing. Emergency legislation cannot be ruled out, particularly if the situation escalates. The relevant legislation and practice need to be kept under review as the situation evolves.
What should employers do if an employee is absent or infected?
In cases involving an existing infection or a suspicion of an infection the employer should be prepared for early involvement and close cooperation with the responsible health authorities. If an employee (or person in their household) has symptoms of COVID-19, the employer must initiate an extraordinary medical check.
There is currently no specific requirement for employers to inform staff representatives (such as works councils) if an employee becomes infected. Nevertheless, works councils have a general right to information on health and safety measures, so it is advisable to inform and involve the works council on any such measures. When doing so employers must be careful to balance the privacy of the individual with the legitimate interest in avoiding the spread of the virus.
If an employee is infected, 70% of the "absence fee" (cca average salary) must be paid by the employer during sick leave (up to 15 working days per calendar year). Afterwards, the state will pay sick pay amounting to 50-60% of average salary.
The employer may also wish to consider requiring “home office” for 14 days or longer, in order to prevent further spread of the virus. Employers are entitled to unilaterally impose home office or teleworking until 30 days after termination of the "state of emergency" situation.
Potentially Infected Employees
If an employee (or a person in their household) has symptoms of COVID-19, the employer must initiate an extraordinary medical check.
In addition, where there is a reason to believe that an employee poses a risk to the health of other employees, the employer can instruct the employee to work from home. If working from home is not possible, the employer may allocate annual leave for the employee in which case the employee is entitled to an "absence fee" (cca average salary).
The employee may be entitled to unpaid leave in certain circumstance (e.g. looking after children because of the closure of the schools) and the parties can also agree on unpaid leave. If the employee is released from work with the approval of the employer, then remuneration based on the parties' agreement must be paid.
If an employee is quarantined by the authorities, the employee will be entitled to sick pay amounting to 50-60% of average salary. If an employee is under epidemiological surveillance at home, they cannot perform work at their usual workplace, and are not entitled to sick pay. During this period, the employer may order home office or allocate annual leave.
Refusals to work or travel
Employers should consider their approach to dealing with employees who want to stay at home to avoid being infected. Employees are under an obligation to perform work and they may not be absent from work on their own initiative due to their fear or abstract risk of an infection. A refusal may indeed be treated as disciplinary matter. However, if the employer’s health is in direct and imminent danger, the employee can lawfully refuse the employer’s instruction.
What are employers' obligations where offices are partially or fully closed?
In principle, an office closure does not exempt an employer from paying employees their base salary (unless an unavoidable external reason can be referred to – see below for further details). We advise employers to order employees to work from home wherever possible. If this is not an option, the employer may allocate annual leave for the employee or the parties can agree on unpaid leave.
Since 16 April 2020, the employer and the employee can agree on reduced working time (of a minimum of 50 % but a maximum of 70 % of the original working time). In these circumstances, the parties can apply for a state subsidy (subject to certain conditions), which will amount to 70% of the lost salary (i.e. 70 % of the 30/40/50% of “absence fee” cca average salary). The state subsidy is subject to a cap of 70% of net minimum monthly salary (HUF 107,065 cca. EUR 305). The employee and the employer must agree on “individual development time” (e.g. attending training, developing the employer’s equipment) for the duration of the subsidy, which will cover30 % of the reduction in working time. During this time, the employee must be at the disposal of the employer, and the employer must pay salary to the employee for this period. The employer must also undertake to maintain its headcount for the duration of the subsidy and one month afterwards.
The reference period (in Hungarian: “munkaidő-keret”) can also be unilaterally ordered or expanded by the employer (for a maximum of 24 months) to allow flexibility regarding allocation of work during the COVID-19 pandemic and in the months afterwards.
Further, given the current exceptional circumstances, employers may not be obliged to pay the base salary to employees if “unavoidable external reasons” caused the downtime (e.g. if the government issues a decree on mandatory closure of certain or all businesses or plants).
Finally, we note that employers and employees can mutually agree to deviate from any provisions of Hungarian Labor Code.
Where can employers and employees access local and national advice?
General information and recommendations (in Hungarian) are available here.
It is strongly recommended to keep up to date with these recommendations, as they are updated daily.
Last updated 17 April 2020.