New rules on the child rearing leave and indemnity entered into force

Law no. 89/2019 for amending and supplementing Government Emergency Ordinance no. 111/2010 on child rearing leave and indemnity and establishment of measures for recovery of debts representing child rearing indemnity (”Law no. 89/2019”) was published in the Official Gazette no 340 of 03.05.2019.

The law modifies certain aspects, such as the manner of calculating the child rearing indemnity, the aggregation of the child rearing indemnity with professional income and conditions under which employees notify the employer regarding their intention to return to work.

The main amendments that the Law no. 89/2019 brought to Government Emergency Ordinance no. 111/2010 on child rearing leave and indemnity consist of:

1. The amount of the child rearing indemnity

A new article was adopted, Art. 9¹, pursuant to which:

(i)         if the individual who benefited from child rearing leave and related indemnity gives birth to one or more children or is in a situation that entitles him/her to child rearing leave (e.g.: adoption, guardianship, child in placement) in a period of up to 12 months, calculated from the end of the child rearing leave for the previous child, and

(ii)        if the new child rearing indemnity is lower than the child rearing indemnity for the previous child

then, the individual will be entitled to the child rearing leave in the same amount received for the first child.

 

2. The aggregation of the child rearing leave with professional income

The net amount of taxable income that can be obtained, during a calendar year, from the performance of a professional activity during child rearing leave was increased from the amount corresponding to three times the minimum indemnity (i.e. 3,750 lei) to five times the minimum indemnity (i.e. 6,250 lei).

3. The regulation of the employers’ obligation to approve the child rearing leave with the duration of at least one month which the other parent, who did not opt to benefit from child rearing leave, is under the obligation to perform

4. The scope of the dismissal prohibitions

It was expressly provided that the employer is prohibited from dismissing an employee who benefits from child rearing leave with the duration of at least one month (which the parent who did not opt for this right is required to perform).

Law no. 89/2019 also provides that the employer is prohibited from dismissing employees who receive insertion incentive during the period they would also be entitled to benefit from child rearing leave, the prohibition being extended with 6 months after final return to work. Thus, the law no longer provides expressly the employer’s prohibition to dismiss an employee during the entire period when the insertion incentive is paid, in the case where its payment is prolonged until the child turns 3 years old, respectively 4 years old, in the case of a disabled child.

5. The notice the employee has to give to the employer regarding its return to work

It was expressly provided that the employee on child rearing leave who contemplates returning to work is under the obligation to notify the employer at least 30 days in advance with regard to the intention of returning to work.

If the employee complies with the above-mentioned obligation, then the employer cannot restrict his/her access to the insertion incentive.

Additional rules imposed on employers with regard to the equal opportunities and treatment between men and women

Government Decision no. 262/2019 for the approval of Methodological Norms for the application of Law no. 202/2002 on the equal opportunities and treatment between men and women (”Norms”) was published in the Official Gazette no. 333 of 02.05.2019.

Inter alia, through these Norms certain issues were clarified, such as: the duties incumbent to individuals with attributions in the field of equal opportunities and treatment between men and women, the measures that must be included under the actions plans in the same field and the employers’ obligation to adopt an internal policy, aimed at eliminating the tolerance to workplace harassment and anti-harassment measures.

The main novelties regulated under the Norms include:

1.       Determining the person who can be appointed by companies, central and local public institutions and authorities, both civil and military who employ more than 50 individuals, in order to insure equal opportunities and treatment between men and women in employment

Under the Norms, the institutions, authorities and companies mentioned above may opt for:

-      Identifying an employee to whom to entrust, under the job description, attributions in the field of equal opportunities and treatment between men and women. In this case, the employer shall take into consideration the need for professional training, under the approved budget and with the observance of the spending limit for this type of expenses;

-      Employing an expert/technician in equal opportunities, under the approved budget. In this case, at the date of planning the budget for the following year, the employer may include the necessary budget for employing an expert/technician in equal chances.

2.       Detailing the manner in which the person appointed with attributions in the field of equal opportunities and treatment between men and women/expert/technician may exert his/her competencies, such as:

-      Communication and collaboration with other specialists working in other departments of the entity where he/she carries out his/her activities;

-      Collection and analysis of data and information with regard to the equal opportunities and treatment between men and women at the level of the entity where he /she carries out his/her activities;

-      Elaboration of reports, studies, analysis and/or forecast on the application of the principle of equal opportunities and treatment between men and women, in the specific field of activity;

-      Informing the management of the entity where he/she carries out his/her activities with regard to the compliance with the specific legislation;

-      Effective participation in various phases related to planning, identifying, proposal, financing, implementation and evaluation of projects/programs initiated by the entity where he/she carries out his/her activities, in view of ensuring the inclusion and monitoring of aspects related to ensuring compliance with the principle of equal opportunities between men and women.

3.       Regulating the measures that must be included under the action plans on the implementation of the principle of equal opportunities between men and women, such as:

-      Promoting equal opportunities and treatment between men and women and eliminating  direct and indirect discrimination based on sex;

-      Preventing and combating workplace harassment;

-      Internal policy for recruiting and selecting new employees;

-      Internal policy on the promotion, including occupation of management positions, or positions under the supervisory board or board of administration in private companies;

-      The wage policy and the associated salary levels for existing management and execution positions; establishing measures aimed at ensuring gender equality and elimination of wage gaps between men and women and equitable conditions for retiring;

-      Continuous training and career development;

-      Various measures aimed at ensuring work-life balance;

-      Work organization, employment conditions and work environment;

-      Developing a safe and confidential system for filing complaints related to sexual harassing and discrimination, in view of ensuring effective access for victims to all administrative and judicial phases, regulated under the law, and offering them guidance during these procedures;

-      Ensuring equal treatment to work health and safety.

4.       Regulating the employers’ obligation to draft an internal policy that must include details regarding the institutional circuit on the measures to be taken in order to ensure the immediate notification of  relevant public authorities, in case of breach of the principle of equal treatment between men and women

5.       Regulating the employers’ obligation to draft an internal policy in the field of employment relations, aimed at eliminating tolerance towards workplace harassment and anti-harassment measures, containing:

-      Guiding principles;

-      Legal framework;

-      Purpose and scope;

-      Workplace harassment, definition and examples of unwanted attitudes;

-      Sexual harassment, definition and examples of unwanted attitudes;

-      Preventive measures, detailing possible actions and sanctions that could be applied in case of workplace harassment;

-      Proactive measures, concrete roles and responsibilities incumbent to both employers and employees;

-      Confidentiality rules;

-      Preliminary measures concerning the settlement of complaints at the employer level;

-      Establishing conclusions following the analysis of complaints and measures ordered at the level of the employer.

In addition, in connection with the above, the Norms also impose the following obligations on the employer:

-      Ensure the organization of specialized information and training sessions on equal opportunities and treatment between men and women for the management of the institution and other management positions;

-      Promote an attitude based on mutual respect and good collaboration that generates professional behavior at any time, including for meetings organized outside the office and outside working hours, as well as in the on-line environment;

To inform employees about the procedure for submitting a complaint of sexual harassment/inappropriate behavior at work and procedure for settling complaints filed by individuals prejudices by such acts.

New amendments to the Labor Code regarding the termination of the individual employment agreement in the context of retirement

Law no. 93/2019 for the approval of Government Emergency Ordinance no. 96/2018 on prolonging certain terms and for the amendment and supplement of certain pieces of legislation (”Approval Law”) was published in the Official Gazette no. 354 of 08.05.2019. The Approval Law modified the rules regarding the conditions that need to be met for the termination of the individual employment agreement upon fulfillment of the retirement age and minimum contribution stage.

Through Decision no. 387/2018, the Constitutional Court upheld the unconstitutionality of art. 56 letter c) first thesis of Law no. 53/2003 - the Labor Code, which:

i)       regulated the termination by operation of law of the individual employment agreement at the date the employee fulfilled the retirement age and minimum contribution stage, and

ii)      ascertained that the provisions thereof are constitutional if the collocation “standard retirement age” is construed as not precluding a woman from requesting the continuation of her individual employment agreement, in conditions identical to men, respectively until she reaches the age of 65.

In view of aligning the Labor Code to the ruling rendered by the Constitutional Court through Decision no. 387/2018, the Government adopted Emergency Ordinance no. 96/2018 on prolonging certain terms and for the amendment and supplement of certain pieces of legislation (”GEO no. 96/2018”).

GEO no. 96/2018 modified the Labor Code and provided that the female employee who fulfils the retirement age and minimum contribution stage is entitled to opt in writing for the extension of the individual employment agreement, until she reaches the age of 65, in 60 calendar days, prior to the fulfilment of the retirement age and the minimum contribution stage.

The Approval Law amends GEO no. 96/2018 and provides the following:

-        The female employee who fulfils the retirement age and minimum contribution stage is entitled to opt in writing for the extension of the individual employment agreement, until she reaches the age of 65, in 30 calendar days prior to the fulfilment of the retirement age and the minimum contribution stage;

-        Based on a request submitted 30 days prior to the cumulative fulfilment of the retirement age and minimum contribution stage and with the employers’ approval, the employee may be maintained on the same position, for a period of maximum 3 years over the retirement age, by extending the individual employment agreement on an annual basis.

Taking into consideration the amendments brought to the Labor Code through the Approval Law, it is unclear if the right to be maintained on the same position for a period of maximum 3 years over the retirement age is regulated:

-        Only to the benefit of male employees, in which case it could be argued that the Approval Law breaches Decision no. 387/2018 of the Constitutional Court and it is, thus, unconstitutional, because it places male employees in a different situation than female employees concerning the conditions for the termination of the employment agreement;

In favor of both male and female employees, in which case this provision would conflict with the above-cites regulations, which enshrine the right of female employees who fulfil the retirement age (which is lower than the retirement age of men) to continue working until they reach the age of 65, based exclusively on their will to this end (without the employers’ approval).