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What to Keep in Mind When “Legalizing” an Existing Work-From-Home Arrangement

What to Keep in Mind When “Legalizing” an Existing Work-From-Home Arrangement

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Over the past year, many employers have had their employees switch to working from home, since this was considered to be the best preventive measure against the spread of COVID-19 among the workforce.

When Serbia entered its state of emergency last year, the Serbian Government adopted the Decree on Organization of Work of Employers During State of Emergency, which prescribed that all employers allow their employees to work from home, where possible. Under this Decree employers could introduce work-from-home by simple unilateral decision, and many employers have continued to keep their employees working from home based on such decisions, even after the state of emergency ended and could no longer be used as a valid legal basis. Under Serbia’s Labor Law, work-from-home can be introduced only with the explicit written consent of the employee, by amending the employment contract. The Labor Law sets out a list of elements that must be included in employment contracts involving working from home, including rules on working hours and schedule, measures for supervision and quality control of the work, equipment provided by the employer or compensation for use of the employee’s own equipment, and reimbursement of expenses incurred due to working from home. The Labor Law does not allow for any exceptions, which means that the employers must also amend the employment contracts for those employees who will be working from home only temporarily due to the COVID-19 pandemic.

At the end of January 2021, the Serbian Ministry of Labor, aware that a significant percentage of the Serbian workforce is working from home in the absence of any specific regulations on safety for this type of work, published Guidelines for Safe and Healthy Work from Home. The Serbian Law on Health and Safety at Work does not even appear to apply to work-from-home, since it defines the workplace as a place of work which is under the direct or indirect control of the employer. However, by publishing the Guidelines, the Ministry of Labor expressed its view that the Law on Safety and Health at Work and all applicable bylaws on risk assessment and work safety measures apply to work from home, to the extent possible.

As Chair of the Labor Regulations Committee of AmCham in Serbia, I recently moderated an online AmCham panel in which member companies could hear firsthand from representatives of the Serbian Directorate for Health and Safety at Work and the Labor Inspectorate what the authorities deem mandatory and will look into when it comes to work-from-home.

According to the representatives of the Directorate, employers are required to undertake a work-safety risk assessment for each employee working from home and amend the relevant company’s Act on Risk Assessment accordingly. However, they said, the Labor Inspectorate will allow an exception to this rule for temporary work from home arrangements made as a preventive measure against COVID-19. The Directorate recommended that employers use the checklist published as part of the Guidelines to help them collect relevant information for the risk assessment from the employees. This checklist was taken from the website of the European Health and Safety at Work Agency and can be adapted by employers to adjust to their specific organization. It is also necessary to train employees on how to work safely from home. Even though this training can be conducted online, the Labor Inspectorate will still insist that the employer keeps records of it in hard copy, with the wet signature of the employee.

To sum up, in order to legalize the existing work-from-home model, an employer needs to adopt a work-from-home policy including work-safety rules, have employees sign annexes to their employment contracts, conduct formal risk assessments, and train employees on work-safety measures. Once employers start asking their employees to formally accept working from home on a massive scale, it will be interesting to see how the employers will cope with refusals, as the Labor Law does not provide a proper mechanism for forcing employees to work from home.

By Dragana Bajic, Head of Regional Employment Practice, Zajednicka Advokatska Kancelarija Maric in cooperation with Kinstellar

This Article was originally published in Issue 8.3 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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