Amendments regarding the temporary reduction of working time caused by the state of alert (kurzarbeit)

Law no. 58/2021 (“Law no. 58/2021”) was published in Official Gazette no. 345/5.04.2021, bringing a new series of amendments and additions regarding the temporary reduction of working time caused by the state of alert/emergency/siege and the financial support granted in relation to this measure.

These measures become applicable starting from April 8, 2021.

New conditions for applying the Kurzarbeit mechanism

Law no. 58/2021 brings important news regarding the conditions in which employers can apply the temporary reduction of working time to benefit from the support measures regulated under GEO no. 132/2020, as follows:

• Employers now have the possibility to reduce employee’s working time with maximum 80% of the of the daily/weekly/monthly duration provided in the individual employment agreement (the previously applicable limit was maximum 50%). As until now, the measure may be imposed both during the state of emergency/alert/siege, as well as for a period of up to 3 months from the end of the last state of emergency/alert/siege;
• A condition for applying the measure is to obtain the approval of the trade union or employees’ representatives, where such structures are in place, or to inform employees, in units where there are no trade union or employees’ representatives in place The employer must to submit a copy of the approval or, as the case may be, proof of informing employees together with the request for reimbursement of the allowance;
• The minimum number of days for which the reduction of working time may be applied remains unchanged, namely at least 5 working days, with the clarification that such days may be during a period of 30 calendar days, starting with the first day when the measure is actually applied;
• The condition referring to turnover reduction is changed, with the new regulation mentioning that the reduction of activity must be justified by a turnover reductio of at least 10% compared to the similar month or to the monthly average of the turnover from 2019. Furthermore, in order to access the financial support, the requirement to submit the monthly balance sheet is eliminated and replaced with an employer’s statement regarding the turnover reduction;
• The requirement to set out the working schedule for the entire month is also reduced. The new regulation introduces the employer’s possibility to change the working schedule whenever necessary, with the obligation to justify such change and with the observance of the limits mentioned above;
• Employers still have the obligation to communicate the decision on reduction of working time to the employee at least 5 days before the effective date (for which registration in Revisal is still not necessary according to the new regulation). The decision may be communicated to employees by any means usually used by the employer for communication with employees and it is no longer necessary for it to be signed by the employee for acknowledgement;
• The new regulation introduces the employer’s possibility to communicate the decision on reduction of working time to the employee at least 24 hours before the effective date, in certain situations, more specifically when a change in the working schedule occurs as a result of an increase in the employer’s activity requiring additional personnel or when an employee who cannot perform work according to his/her work schedule must be replaced;
• Clarifications are made regarding the calculation of the allowance granted to employees impacted by the measure, namely that the percentage of 75% is calculated by reference to the gross base monthly salary corresponding to the hours of working time reduction;
• To the extent allowed by the personnel budget, the employer may supplement the allowance with amounts representing the difference up to the base salary level corresponding to the occupied position, however without the possibility to obtain reimbursement for such difference;
• Clarifications are made regarding the prohibition to hire/subcontract personnel for the performance of identical or similar activities to those performed by the employees whose working time was reduced, in the sense that such prohibition will take into consideration subsidiaries, branches or other secondary locations where the measure is applied. Exceptions are also introduced, allowing employers to hire personnel to replace employees whose work schedule was reduce if their individual employment contract terminates by law, by dismissal for reasons imputable to the employee or by resignation;
• Clarifications are made regarding the prohibition to grant additional amounts to the employer’s management structure until the end of the period for which the measure is applied. Under the new regulation, the prohibition refers to the bonuses or any income other that the base salary provided in the contract and to the persons ensuring the leadership and/or management of the company in the sense of Companies Law no. 31/1990.