In the current emergency situation where restrictions have a significant impact on economic activities, many companies find it difficult or even impossible to fulfil their contractual obligations. It is probable that in many cases an entrepreneur can rely on force majeure in which case breach of obligations is excusable.

LAWYERS OF THE CHAMBER HELP ENTREPRENEURS IN THE CASE OF FORCE MAJEURE IN TWO WAYS:

1. We give advice, if in our opinion, an entrepreneur can rely on force majeure or not. If it is possible, we help entrepreneurs in taking measures for using the force majeure provision.
2. We issue letters of confirmation on the circumstances related to force majeure. If a contractual partner requests a confirmation from a third party regarding the circumstances related to force majeure, we will issue the respective confirmation if there is evidence to confirm the respective circumstances.

First hour of legal counselling is free of charge for the members of the Chamber and each following hour costs €50 to which value added tax will be added. If an entrepreneur is not a member of the Chamber of Commerce, the hourly price is €100, to which value added tax will be added. At least an hour should be considered for issues related to force majeure. In more complicated cases, the time required may be longer.

Should you need counselling or a letter of approval for force majeure, please contact Merike Koppel by email Merike.Koppel@koda.ee or phone 604 0072.

Salary
Employers have the right to decrease an employee’s salary only by agreement between the parties. This principle is not influenced by the emergency situation declared by the government. In order to prevent disputes later, even the temporary salary decrease should be formalised in writing by both parties. The same principle is also applicable for any other changes in the employment contract.

As an exception, employers may decrease the salary without the consent of the employee if the employer is unable to provide employee with work in the agreed amount due to unforeseen economic circumstances that are beyond their control and payment of the agreed salary is unreasonably burdensome for the employer. Such situation may arise for example in relation to the corona virus outbreak. When using the exception, an employer may decrease salary for up to three months during a 12-month period to a reasonable extent but not below the minimum salary (€3.48 per hour and €584 per month). Before decreasing the salary, an employer is required to offer employees alternative work, including remote work. An employee has the right to refuse to work proportionally to the decrease of the salary. An employer must inform of the decrease of salary at least 14 days in advance.

Redundancy
Employers have the right to make employees redundant due to economic reasons arising from the corona virus outbreak. The Employment Contracts Act foresees that an employer has the right to extraordinarily cancel an employment contract if continuing an employment relation under the agreed terms and conditions becomes impossible due to decreased volume of work or reorganisation of work or in other cases where work ends. Redundancies related to the corona virus outbreak must be made according to the redundancy rules set out in the Employment Contracts Act.

Vacation
If in the current situation an employer is unable to offer an employee work in the agreed volume or the employer does not have sufficient financial means to pay salary, the parties may agree also in, i.e. unpaid vacation. However, it is not allowed without the consent of the employee.

If work is not possible at the moment, the parties may agree on using vacation days or additional vacation. Employers are not required to ask for the employee’s consent for requesting them to use principal vacation days only in a situation where the vacation days have been entered into the holiday schedule which is informed to the employee before 31 March.

Remote work

Employers who can offer remote work should consider that without the consent of the employee it is not allowed to force an employee to work remotely or vice versa. It means that if parties have not agreed on remote work before, the respective agreement should be made now. It is also applicable in a situation where remote work is a temporary solution.

Working overtime

If workload has increased or the employer needs to replace employees who have become ill, there is a possibility to consider employing temporary workers as well as increasing the workload of the existing employees, i.e. using overtime. As a rule, overtime needs to be agreed between the parties, but in special cases it is allowed without the consent of an employee. As an exception, the law provides the right to request from employee overtime without the consent of the employee in a situation where there are unforeseen circumstances related to the company or activity of the employer. For example, it is allowed for preventing damages or if during shift work an employee fails to show up at a determined time and there must be no interruption to work. An employer is required to compensate overtime with free time equal to the time of overtime work, unless compensating overtime work in money is agreed. Upon compensating overtime work in money, employer must pay employees a salary in the amount of 1.5 times the salary.

Performing requirements related to working environment

Pursuant to the Occupational Health and Safety Act, an employer is obliged to ensure performance of the occupational health and safety requirements even during the corona virus outbreak. Among other things, employers are obliged to take any measures to protect employees against viruses. When choosing the relevant measures, risks arising from the emergency situation, recommendations of the health authorities etc. must be assessed. To protect the health of their employees, employers can offer hygiene and disinfection materials at work and if necessary, the option to use gloves or prevention of contacts with clients (e.g. leaving goods behind the client’s door). Furthermore, employees could be reminded of regular hygiene requirements and ensure cleanliness of work rooms and surfaces. It should be taken into account that if the employer fails to take measures, an employee has the right to refuse to work, because it puts his or her life and health at risk.

Furthermore, spreading of the virus could be prevented and health of employees protected by allowing remote work. However, it should be taken into account that remote work should also be done in a safe manner. According to the recommendations of the Labour Inspectorate, employers should instruct employees, among other things, on how to work safely, how to equip a workplace in a safe manner, when to rest etc.

Notifying employees

In addition to risk assessment and taking measures, employers have the legal duty to inform employees of the results of risk assessment as well as of the measures taken to remove risks. Therefore, employees should be kept informed of what is currently happening in relation to the emergency situation and which rearrangements are organised by the employer in relation to the situation.

Certificate for sick leave

Due to the current emergency situation, employees have the option of self-opening a sick leave or care leave. This means that if an employee is sick or wishes to take care of a sick child or relative, they will have to notify through the portal digilugu.ee of their incapacity for work and the certificate of incapacity for work is opened automatically until 30 March. The entered notice is sent to the health board, employer and family physician. The family physician will contact the employee within a week in order to clarify the person’s health status and possible symptoms. Thus, in essence an employee can take a sick leave when they have had contacts with a person infected with corona virus, but the symptoms have not yet appeared.

Business trips

Considering what is happening in the world, it is generally recommended to cancel all work trips that aren’t essential. However, it should be kept in mind that employees have the right to refuse to go on a business trip if it jeopardises their own or someone else’s health. At that, the respective refusal cannot be considered as breach of the employee’s obligations.

Should you have any questions regarding employment relations or working environment, do not hesitate to contact the lawyers of the Chamber by email juristid@koda.ee.