As a result of the COVID-19 pandemic and measures put in place in response, countries around the world – including Bulgaria – have adopted new innovations in the area of employment in a bid to keep their workers safe and productive. One such innovation is work from home.
More than a year after the pandemic began, home-office work has proven so effective, many believe it 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 30 March 2021 webinar The Future is Now: The New World of Work in Bulgaria and hosted by labour law experts Atanas Bangachev and Maria Harizanova with CMS Sofia – explores the impact of 'remote work' in Bulgaria for both workers and companies.
Remote work in Bulgaria
For businesses based in Bulgaria, "there are two ways to implement remote work", explains Maria Harizanova, an Attorney-at-Law with CMS Sofia. "One form is the assignment of remote work in general."
General remote work
Remote work of this type can only be implemented with the consent of both parties. "An employer cannot force an employee to work remotely," explains CMS's Harizanova.
The only exception to this is remote work implemented in response to the COVID-19 state of emergency, which will described in more detail below.
As for remote work outside of the COVID-19 emergency, such an arrangement must have the support of the employee and its terms and conditions must be set down in the employment contract between worker and employer (more on this later in the article).
State of emergency
At this time, remote work can also be implemented in line with the state of emergency that Bulgaria declared on 13 March 2020. This decree enabled employers to unilaterally assign remote work to employees if in the best interests of employees and the business.
In this situation, employers can initiate remote work by drafting a work-from-home order and issuing it to the company's workers. The standard employment contact can be used for this arrangement with only "the place of work" clause in the agreement changed to reflect the new remote-work situation.
Of course, once Bulgaria's state of emergency ends, the employer loses the ability to issue remote work orders and normal working conditions set down in the Labour Code again apply. To implement remote work after the end of the State of Emergency, an employer would again need to obtain the consent of employees.
Remote work employment agreements
Whether remote work is implemented through consent or the State of Emergency, employment agreements must be adapted to reflect this form of employment. "The procedures and conditions of remote work must be included in this employment contract," explains CMS expert Harizanova, who says that a comprehensive agreement will resolve many of the questions and issues that will arise once remote work is underway.
Employers can also draft a separate document, which will outline work-from-home procedures and employer expectations, including how remote work should be reported, and how often remote employees should communicate with supervisors.
Remote work agreements should also cover issues such as equipment (whether employers will provide computers, printers, etc. or support employees in the use of their own devices), and how employees will be compensated for acquiring office supplies (e.g. computer paper) and paying home-office utilities (e.g. Wifi, electricity, heating).
Outside of a State of Emergency, the agreement will also define whether remote employees will trade time between the home office and company premises, and the amount of time they are expected to operate in both locations.
The agreement should also specifically state the duration of a home-office workday, and the number of breaks (and their duration) during a shift.
According to CMS's Harizanova, "the amount of time workers spend working remotely should correspond with the working time employees spend when working on the employer's premises" and employees should be available to liaise with managers and supervisors upon request.
Remote workers must also record their working time into a company-approved document and are responsible for the accuracy of their time sheets.
Health and safety
Remote work does not exempt an employer from ensuring the health and safety of employees, explains Harizanova. The remote working environment must meet the same government standards as a company office or worksite.
According to Harizanova, the applicable laws and regulations come from the Health and Safety at Work Act and an array of ordinances, covering various issues such as the wellbeing of employees during training, rest regimes during working hours, employment-related risk assessments, etc.
In order to protect the health and safety of remote workers, an employer should do the following:
- Modify internal policies on health and safety to include the remote-working environment;
- Ensure that company policies identify the workers who will be involved in remote work;
- Inform employees of changes to internal policies vis-à-vis remote work;
- Perform a risk-assessment of each remote workplace;
- Make sure that this entire process has been documented and that the execution of each step can be proven at a later date.
As stated, employers are obliged to conduct risk-assessments of the workplace (i.e. home office) of each remote employee. Employees have the right to invite inspectors from the Ministry of Labour to inspect their home office, and similarly inspectors must be allowed access to a worker's home office if an inspection is called for. Admittedly, these risk-assessment requirements are difficult to sustain during the pandemic, and as a result the government stated "that this formal procedure, though mandated by law, may not be observed during the extraordinary situation with COVID", explained Harizanova.
This exemption will not apply after the State of Emergency has ended.
Procedures for work-related accidents
If a remote worker suffers an injury in the home office or while otherwise on the job, the following procedures should be implemented:
- The injured employee must immediately notify the employer of an accident;
- The employer must initiate an investigation into the circumstances of the accident;
- Based on this investigation, the employer must issue a protocol with the details of the accident;
- This protocol must be shared with Bulgaria's Social Security Institute;
- If the Social Security Institute deems that the accident was caused by the company's failure to follow worker health-and-safety provisions, the company could be found liable.
The protection standards for remote employees are indistinguishable from workers labouring in a company factory or office. According to CMS's Harizanova, employers should take the following steps to ensure the compliance of remote workers with safety regulations:
- Employers should communicate with remote employees and determine the exact location of their remote office. (Some employees, unbeknownst to supervisors, have gone abroad or have retreated to summer homes).
- If an employer and employee agree that the latter can work from a foreign country, this should be specified in the employment contract.
- Employers should review and amend internal policies regarding data protection to accommodate remote work.
Employers whose business operations do not allow for work to be conducted remotely must implement measures onsite to protect employees.
Employers can take temperature measurements as a means to determine whether an employee is showing symptoms of possible infection. Bulgaria's data-protection and privacy rules discourage the recording of this information although under certain conditions such recordkeeping may be lawful. Employers can use this information as a means to determine who and who should not have access into its facilities.
If employees consent, a company can sponsor COVID-19 testing, but the employer must pay for this testing and an employee that is tested is under no obligation to share the results. If an employee's test is positive, the worker is obliged to follow government-imposed measures and enter a self-imposed quarantine.
Currently, COVID-19 vaccinations are not mandatory in Bulgaria, and being vaccinated cannot be a condition of employment. Subsequently, employers cannot ask employees whether they have been vaccinated or to provide proof of vaccination.
Lastly, employers can refuse to admit employees into their facilities if the workers are exhibiting flu-like symptoms or appear ill in any way.
The pandemic and the shift to remote work also raise the issue of employee mobility. In line with a EU directive on the matter, Bulgaria recently adopted "the single resident and work permit" procedure, explains Bulgarian labour-law expert Atanas Bangachev, a Partner with CMS Sofia.
The legislative changes, which were introduced, affect intra-corporate transfers and "Blue Card" status holders (i.e. highly qualified third-country employees working in the high tech sector).
Although the legislation and approval process is new, CMS's Bangachev states there is an expectation that approvals, particularly for Blue Card employees, can be expedited under the amended system.
If any single factor has made remote work possible, it is the digitalisation of work processes, but CMS expert Bangachev notes that digitalisation has raised challenges and issues.
The transfer and storage of documents and contracts during the pandemic has raised the issue of how to sign or conclude agreements while adhering to government social-distancing measures. Various categories of electronic documents bear different signing protocols, particularly concerning the use of electronic signatures. "There are quite a few requirements for dealing with electronic systems through which communications are being sent", explains Bangachev. Companies are urged to learn and follow these requirements since concluding agreements electronically will expedite business during the pandemic, and will become increasingly important in the future as remote work becomes more widely adopted.
During the pandemic, virtual staff meetings have become commonplace. Legally, such online meetings can be performed, but CMS's Bangachev encourages companies to adopt the most efficient and secure conferencing applications for this purpose.
Supervising online workers
Remote work raises the practical question: how can employees operating from home offices be efficiently managed? According to Bangachev, "it is in the legitimate interest of employers to ensure that employees comply with their work time". The reasons are twofold. Employers obviously need to manage the operations of their remote staff, but they also need to ensure that employees are adhering to health and safety requirements on the job. Some employers are addressing this by asking workers to log-on to conferencing software or the company's dedicated network during the workday so that employers have an exact record of their daily working hours. Bangachev states that using conferencing applications or the company network to monitor employees is legally acceptable so long as employers respect employee privacy and adhere to data-protection rules, the most obvious rule being: employers should not monitor or read employee emails.
Right to disconnect
Ironically, the danger of remote work is not that employees may work less, but work beyond the limits set down by Bulgarian labour law. Overwork in the home environment – "this sense that you are always on", says Bangachev – can create stress, fatigue, burnout and depression that can affect employee health and productivity. Some countries in Europe have passed laws giving employees the "right to disconnect" – the ability during non-working hours to turn off work devices and ignore professional communications without fear of reprisals from colleagues and supervisors. In January 2021, the European parliament called on the European Commission to pass a EU law that would give all workers in the union the right to disconnect. Although no such EU law is in place yet, companies are encouraged to allow their remote workers to disconnect at certain times and receive the rest mandated by Bulgarian law.
For more information or advice on implementing work from home in Bulgaria, contact your CMS client partner or local CMS experts:
Atanas Bangachev, Partner
Maria Harizanova, Attorney-at-Law