As a result of COVID-19 and measures put in place in response to the pandemic, countries around the world – including Slovenia – had to adapt their organisations in the area of employment in a bid to keep their workers safe and productive. The most common way was resorting to the instrument of work from home.
Now, more than a year after the pandemic began, , many believe home-office work will become a fixture of our post-pandemic future. But remote work raises a host of legal and administrative challenges. This article – based on the 16 March 2021 webinar The Future is Now: The New World of Work in Slovenia and hosted by labour law expert Amela Žrt with CMS Slovenia – explores the impact of homeworking in Slovenia for both workers and companies.
Like everywhere, Slovenia has utilised work from home as an instrument to combat the COVID-19 pandemic and the economic measures put in place in response to it.
"Work from home is broadly used today," explains Amela Žrt, a Senior Associate with CMS Slovenia. "There are pros and cons in the use of work from home, but one of the benefits is a reduction in costs".
Žrt states that cost savings can be identified in several key areas, such as the commuting costs of employees, and the operating costs of employers (through down-sizing such as acquiring smaller offices). Work from home also offers employers other advantage, such as being able to hire on attractive candidates living in other cities or parts of the country without worrying so much about the commute cost.
According to CMS labour-expert Žrt, there are host of good reasons to implement a work from home arrangement, including studies that showing "that employees working from home are more efficient."
Home working, however, also poses challenges. For employers, a work-from-home arrangement forces them to relinquish a certain amount of control. For workers, inter-office teamwork is more difficult to sustain.
"Generally," Žrt says, "more effort is required to set up and manage operations in a work-from-home situation".
Defining 'work from home' in Slovenia
How does the Slovenian law define work from home?
Article 68 of Slovenia's Employment Relationship Act describes work from home as any work conducted by an employee "at his home or in the premises of his choice that are outside of the employer's work premises". Hence, say Žrt, telework (conducted with the use of communication technology) and remote work are both considered 'work from home' under Slovenian law.
Clearly, work from home is a general employment category encompassing all forms of out-of-office work. However, to be legally recognised as work from home, the activity must fulfill the following requirements:
The arrangement must be sealed in a new employment agreement (an annex or addendum to a previous agreement is not enough);
The agreement must fully define the rights, obligations and conditions on the nature of this remote work (Slovenian law recognises home workers as having the same rights as regular employees);
The agreement must facilitate compensation to the employee for the use of the worker's personal resources;
The employer must notify the Slovenian Labour Inspectorate about every staff member designated as working from home.
Implementing work from home on a massive scale after the outbreak of the pandemic proved to be a legal challenge in Slovenia as both the government and businesses sought ways to remotely mobilise Slovenia's work force in a way that was consistent with the law.
Ultimately, according to CMS's Žrt, the Ministry of Labour’s guidelines determined that an interpretation of Article 169 of the Employment Relationship Act provides employers with the right to unilaterally order its personnel to work from home (change of place of work) in an emergency situation such as the COVID-19 pandemic. Such an emergency situation must threaten "the lives and health of people or the assets of the employer " and work from home can only be imposed temporarily while the emergency is in place, Žrt adds.
Drafting an employment agreement or the unilateral decision of the employer
Given the necessity of drafting a new employment agreement or the unilateral decision on work from home to create a work-from-home arrangement, the Slovenian Ministry of Labour issued guidelines on the following rights, obligations and conditions that should be addressed:
- A clear definition of the employee's place of work (i.e. in this case, the employee's residence);
The scope of work that will be undertaken in this arrangement;
How employees will report to management and how managers will supervise the employee's home-based operations;
Working time and the submitting of time sheets;
The professional equipment that the employee is providing and the amount employees will receive in compensation for this;
The availability of the employee;
The measures to protect company data and business secrets;
How an employee should communicate with the employer regarding issues pertaining to the employment contract (e.g. if an employee is unable to fulfill work obligations due to illness); and
- The health and safety.
Compensation for materials and equipment: As this list reveals, both employers and employees have obligations in a home-office arrangement. In case of work from home, employer and employee can agree that the employee will use their own resources and utilities, whereas the employer must pay compensation to home-office employees for the use of their personal equipment. This compensation is:
Working time and rest periods: As stated, employers and employees must agree on a home-working schedule that includes the following points:
Details on the daily working period, which includes break times.
Details on the weekly routine with non-working time and rest periods also specified.
Flexibility if agreed upon by both parties. The home-working arrangement can be the same as when working in the employer’s premises. However, according to Article 157 of the Employment Relationship Act, the parties can also agree on a more flexible alternative schedule – regulating working time, night work, breaks and daily and weekly rest differently – so long as health and safety regulations are met.
A precise instruction for recording the time worked, and submitting these records to the employer. The employer’s obligation to keep daily records of working time is not affected by the fact the employee is working from home.
CMS labour law expert Žrt reiterates that home-office employees are subject to the same rights and protection as regular office-based employees, and any new employment agreement should reflect this.
Notifying the labour inspectorate: as Slovenian law requires employers to inform the labour inspectorate of any employees who are performing their duties outside of the business's traditional workplace, these notifications should be completed in the following way:
- They can be done electronically using the SPOT portal;
They should include employer information such as company name, registration number, and the business activity;
They should also include employee information such as a job description, the resources and materials needed to perform work in the home office, the duration of the home-office arrangement and the proportion of time the employee will be working from home (e.g. 100% of the time, a 50%-50% arrangement, etc.); and
- They should specify if the home office poses any health and safety risks to the employee.
Health and Safety: An employer must:
- Accept the duty of ensuring that all employees (both at home and at the employer's premises) are operating under the safest possible conditions. "It is the employer's duty to ensure a safe and healthy work environment," says Žrt, "and this duty is not affected if an employee's duties are carried out at home".
Ensure that the company's safety statement with a risk assessment is updated to reflect the risk assessment of work during the pandemic.
Consult and include the professional health and safety contractor and medical practitioners regarding the suitability of data obtained for the risk assessment.
Ensure that company health and safety regulations include specific measures pertaining to combatting the spread of COVID-19 and protecting all employees from infection.
- Comply with health and safety obligations, not only because of potential inspection procedures and fines, but also due to the employer's liability for workplace accidents.
The use of digital tools is crucial for a work-from-home relationship to be successful and productive. As more sophisticated IT systems are adopted to support home workers, employers must be attentive to the following issues:
- That any IT systems put in place to monitor the productivity of home workers do not violate the personal privacy of employees.
That employers understand that the use of any algorithms or artificial intelligence systems in HR decision making processes may result in unsuspected and unwanted prejudicial outcomes. (For example, AI systems used for candidate selection could inadvertently base decisions on race or gender). Not only can the use of algorithms lead to bias and discrimination, but there are also important data protection implications that need to be considered. AI systems should be designed and operated to comply with existing laws, including the GDPR, and to guarantee privacy and the dignity of the worker.
- Digital tools from laptops to Smartphones allow constant communication with employees at any hour of the day. Hence, in this new digital era, employers must be sure not to expect contact with employees during non-working times. Employees, say Žrt, must have the right to disconnect.
Government plans to change the existing regulation of work from home
With months to come before vaccinations are complete and the pandemic is eliminated, work from home is expected to be a fixture of the Slovenian employment scene for the foreseeable future. What is more, many companies, impressed by the advantages of work from home, may opt to incorporate it into their permanent operations, at least to certain degree. In the post-pandemic world, many employees may adopt a more flexible work routine where they spend part of the working week at home, and part of it in the office.
In response, the government is expected to pass a law, which will include reforms of the existing work -from-home regulation that will make it easier for companies to adopt work-from-home relationships with their employees. Among other things, says Žrt, it should soon be "possible to seal a work-from-home relationship with an employee by drafting an annex to an employment agreement, instead of having to complete a new agreement”. Other anticipated changes include:
- Making the labour inspectorate notification process less onerous.
Defining work from home as an employee right, in line with the EU Directive on Work-Life Balance.
Reforming tax regulations on employer compensation for expenses incurred by home-working employees.
- Entrenching an employee's right to disconnect into national law.
Clearly, the pandemic has fundamentally changed the way that Slovenian employees conduct their daily work, and even after the pandemic is relegated to history, the working life of scores of Slovenians will never be the same.
For more information or advice on implementing work from home in Slovenia and Slovenia's planned legislative reforms, contact your CMS client partner or local CMS expert: