‘Becoming broken due to the quarantine or not?’

In the last few days, the slogan of ’salary is not to be paid during quarantine’ received significant press coverage. The given statement briefly based on that the Act I of 2012 on the Labor Code (hereinafter: ’Labor Code’) does not include any provisions applied to a quarantine situation.

We only agree with the above statement that the Labor Code does not include any explicit provisions on the management of a situation occured due to the order of quarantine. However, in our opinion, the assessment of such situation shall be more complex and be examined from more aspects.

In contrary to the press articles, from our standpoint, if the employee is not able to appear at its workplace due to its state of health or the quarantine ordered at its place of residence, the employee shall be considered as incapable to work.

According to the relevant governmental decree, the so-called ’prohibition from work or official segregation due to public health’ is defined as a unique ground of incapacity to work. Based thereon, even if the Labor Code does not especially include the quarantine as ground of exemption from work, in line with the above case of incapacity, the employee shall still be exempted from work and sick pay shall be paid thereto.

In case the entrance to the workplace becomes limited, i.e. the employee is not able to fulfill its work performance obligation, essentially, there are two potential scenarios.

On the one hand, the employer is entitled to unilaterally decide to temporarily assign the employee’s place of residence as workplace – in the frame and with the fulfilment of the limitations of employment deviating from the employment contract. Therefore, the work performance of the employee shall be assured. However, we kindly draw your attention to that in case of both deviation from the employment contract and ad-hoc home-office work based on the agreement of the parties, the same work safety regulations shall be followed as in case of employment being in harmony with the employment contract.

On the other hand, the cases shall be differently assessed if the employee is not able to perform its obligations – due to their nature, e.g. in case of an employee working at a factory – at any other workplaces. According to the relevant provisions of the Labor Code, if the employer does not fulfill its employment obligation in scheduled working time due to unavoidable external reason, it shall not be obligated to pay salary to the employees. Having regard to the fact that the quarantine caused by the coronavirus – due to its force majeure nature – shall be considered as unavoidable external reason, the employer shall not be obligated to pay base wage to the employees being obligated to work. Nevertheless, the employer may naturally unilaterally deviate from such provisions, therefore, based on its own decision, it may pay remuneration to its employees during such period as well.

Summarizing the above, we do highlight that simultaneously with the appearance of the virus in Hungary, its potential consequences are worth being examined also from labor law perspective as some of the evolved situations may require immediate actions both from the employers and the employees.

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The information above possesses exclusively informative nature, therefore, it shall not be considered as legal advice of Germus and Partners Attorneys At Law, any attorneys or trainee lawyers thereof.