The Romanian Senate adopted on 04.05.2021 a new draft law – L91/2021 – for the amendment and completion of Law no. 81/2018 on the regulation of telework activity, a project that is currently being sent for debate and approval to the Chamber of Deputies.
These changes come in the context of the new reality created as a result of the COVID-19 pandemic, in order to make the work relationships carried out in telework more flexible. According to the statement of reasons, following market studies carried out in February 2021, a percentage of 53% of Romanian employees want a more flexible work schedule, while 50% want the employer to make resources available to them as well necessary for an activity carried out in a telework regime.
The main changes targeted are:
- Art. 2 lit. (a) shall be amended: “telework – the form of work organization through which the employee, on a regular and voluntary basis, fulfills the duties specific to the position, occupation or trade he holds, in a place other than the workplace organized by the employer, [cel puţin o zi pe lună – EXCLUS] using information and communication technology;”
- Art. 4 line. (3) will be amended: “The employer has the right to check the activity of the teleworker by using information and communication technology – INCLUDING, under the conditions established by the individual employment contract, the internal regulation and/or the applicable collective labor agreement, under the law.”
- Art. 7 lit. (c) will be amended: “to ensure conditions for the teleworker to receive sufficient and appropriate training in the field of safety and health at work, in particular in the form of information and work instructions, [specifice locului de desfăşurare a activităţii de telemuncă – EXCLUS] regarding the use of equipment with a viewing screen: upon employment, [la schimbarea locului de desfăşurare a activităţii de telemuncă – EXCLUS], when introducing a new work equipment, when introducing any new work procedure.”
- Art. 8 line. (2) – a new letter (f) is inserted: “to respect and ensure the confidentiality of information and documents used during the telework activity.“
- Art. 11 lit. (g) will be amended: “non-compliance with the provisions of art.7 letter c) regarding the employer’s obligation to ensure conditions for the teleworker to receive sufficient and adequate training in the field of safety and health at work, especially in the form of information and work instructions , [specific to the place where the teleworking activity is carried out – EXCLUDED] regarding the use of equipment with a viewing screen: upon employment, [when changing the location of the telework activity – EXCLUDED], when introducing new work equipment, when introducing any new work procedure, with a fine of 2,000 lei.”
Although the intention pursued by this legislative project is one of simplification and adaptation to the current realities regarding the telework activity, this project still remains deficient from several points of view. First of all, by eliminating the phrase “at least one day a month”, a phrase that offered the possibility of teleworking and people who spent a greater part of their time at the workplace organized by the employer than outside it, if at least one day a month they carried out their activity from another place, with this amendment, the time coefficient is removed, a fact that leaves open to interpretation what kind of activity can be considered telework. Can work carried out both in the office and outside it still be classified as telework, or only work carried out entirely outside the office will still be considered telework.
In addition, although the phrase “specific to the location of the telework activity” was removed both at the level of art. 7 as well as in art. 11, the legislative version approved by the Senate did not preserve the repeal of the provisions of art. 5 para. (2) lit. (c) regarding the obligation to expressly mention in the individual employment contract the place / places where the telework activity is carried out. Thus, although greater flexibility was desired for the employee, namely for him to have the freedom to work from any place, and the training in the field of safety and health at work was no longer linked to the specifics of the place of activity, but to the equipment used, by maintaining the provisions of art. 5, in fact, no real change is made, the employee still being tied to a certain place in order to carry out his activity, a place that must be stipulated in the employment contract.
Moreover, in the context in which, according to the study published in 2020 by the European Foundation for the Improvement of Working and Living Conditions, over three quarters of employees in the European Union want to continue working from home at least occasionally, even in the absence of restrictions imposed as a result of the COVID-19 pandemic, we believe that such a legislative project should have been much more both to cover not only the information privacy aspect but also the following points of interest:
- to what extent employers can be granted rights of control and access under individual employment contracts over the activity of employees and how to avoid potential abuses in this regard or a limitation of private life;
- the extent to which employers can delegate their obligations to employees to comply with health, safety and data protection regulations;
- how to ensure the protection of personal data;
- to what extent and under what conditions will the liability of the employer or the employee in the telework regime be engaged – here it will be necessary to examine if and to what extent the employer is responsible for accidents at work during the work schedule and if and to what extent the insurance for work accidents will cover the respective damages or if additional insurance will be required for these risks. The question of liability also remains open in the event that the employer’s property is damaged by a third party in the same space as the employee (for example, children, flatmates, pets, etc.) during working hours .
More information on this project can be found below:
