How to introduce remote work during COVID-19 pandemic?

COVID-19 pandemic is on a hike and the employers are therefore faced with the necessity to introduce remote work in order to secure occupational safety and health of their employees. However, the Serbian law does not provide for a legal basis for the employers to order teleworking in exceptional times.

During the recent state of emergency, which lasted from 15 March 2020 until 6 May 2020, the Government enacted the Decree on organisation of work during the state of emergency (Official Gazette of the Republic of Serbia nos. 31/2020) (“Decree“). The Decree imposed an obligation on employers to facilitate remote work if the job can be performed on a remote basis. If the employer’s Work Rules/Collective Agreement or individual employment agreements did not regulate remote work, the employer was required to issue individual decisions to each employee, specifying the work hours and the manner of supervision of the employee’s work. Although the Decree did not explicitly permit the employer to require the employees to work on a remote basis, it could have been read to imply this authority as part of the employer’s obligation to facilitate remote work whenever the job requirements permit. However, the Decree was abolished on 6 May 2020, as a consequence of the end of the state of emergency. It no longer represents a legal basis for an employer’s order of remote work.

Article 50 of the Serbian Labour Act (Official Gazette of the Republic of Serbia nos. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017, 113/2017 and 95/2018) allows that, where an employee is not on a teleworking contract, the employer and the employee may agree that the employee will work a certain number of hours from home. The employer must therefore seek to obtain the employee’s consent for remote work. The agreement between the employer and the employee on remote work does not necessarily have to be in the form of an amendment to the employment agreement. It should indicate the period during which the employee will work remotely; how the employee will be supervised; whether he will be using the employer’s or his own equipment and work tools; if former, how the equipment and work tools will be maintained; and, if latter, whether the employee is to be compensated for the cost of own equipment and other remote work-related costs.

Whereas in many cases the employees will agree to work from home in exceptional circumstances such as COVID-19, it would be useful to amend the legislation to enable the employers to impose such obligation. Until then, the employers should regulate the obligation of remote work in their employment agreements.