New in the Labour Code: Suspension of the employment contract for the care of certain persons and paid carer's leave

New in the Labour Code: Suspension of the employment contract for the care of certain persons and paid carer's leave

Author: Anca Atanasiu, Managing Associate Bancila, Diaconu si Asociatii SPRL, and Ana Flueran, Senior Associate Bancila, Diaconu si Asociatii SPRL

Recently, the Labour Code was amended by Law 140/2023 which introduced a new case of suspension of the individual employment contract at the initiative of the employee: in the case of carrying out, on the basis of a contract concluded under the law, a specific activity as a maternal assistant, personal assistant to the severely disabled or professional personal assistant.

This new case of suspension joins the other situations in which the individual employment contract can be suspended at the employee's initiative (e.g. in the case of parental leave, in the case of accommodation leave, etc.) but also raises a number of challenges in its practical application.

What problems can arise in practice?

As the legislation does not set a maximum period of suspension, employers will find it difficult to determine clearly the period during which the individual employment contract is suspended in these newly introduced cases, which may affect both the internal organisation of the business and the possibility of finding a replacement for a period they cannot anticipate.

Take the example of the maternity assistant. This occupation is regulated both by Law No 272/2004 on the protection and promotion of the rights of the child and by Decision No 679/2003 on the conditions for obtaining a certificate, certification procedures, and the status of the professional maternity assistant.

In order to work as a maternity assistant, it is necessary to obtain a certificate, which is issued for a maximum period of three years but may be renewed, suspended, or withdrawn. According to GD No 679/2003, the individual employment contract for a maternity assistant is concluded for the period of validity of the certificate.

Thus, while in other cases of suspension of the individual employment contract, employers may determine the maximum duration of the suspension (for example, in the case of parental leave this is a maximum of 2 years or 3 years in the case of a disabled child), in the case of an employee who becomes a maternity assistant, the individual employment contract could remain suspended for as long as the employee holds a certificate and has an individual employment contract for a maternity assistant, without this period being limited in time.

In addition, the legislation on maternity assistants already provides that a person who is in paid employment (other than as a maternity assistant) can only become a maternity assistant if the individual employment contract under which she is in paid employment is terminated. It is unclear how the provisions of Law 140/2023 will apply to this case of suspension, as long as the current legislation stipulates that the maternity assistant must terminate the original individual employment contract in order to become a maternity assistant.

What are the effects of the suspension of the individual employment contract?

Last but not least, like any other case of suspension, it produces certain legal effects which are worth mentioning. As a result of the suspension of the individual employment contract, the employee will no longer work for his employer and will no longer receive any rights of a salaried nature. However, certain rights and obligations of the parties may survive during the suspension of the individual employment contract. For example, the employee will continue to be bound by the obligation of confidentiality and loyalty to the employer. The employer may also be obliged to grant employees certain rights which do not constitute direct consideration for the work performed (e.g. the provision of a workplace accommodation or payment of rent as an extra benefit).

In addition, in the case of suspension of the individual employment contract, all deadlines relating to the conclusion, amendment, performance or termination of the individual employment contract are suspended, except in cases where the individual employment contract is terminated by operation of law. For example, if the employer intends to abolish the post held by the employee whose individual employment contract is suspended, this can only be done after the suspension has ended.

Paid days off for carer's leave

On 25 May 2023, GEO 42/2023 entered into force, the provisions of which clarify the paid and unpaid nature of the carer's leave. Thus, GEO 42/2023 expressly provides that, in the case of a carer's leave, days off are paid by the employer. Prior to GEO 42/2023, the paid or unpaid nature of such days off was a much-debated issue in practice, with employers not knowing how to proceed when faced with such requests from employees.

It should be recalled that a carer's leave may be granted to employees who have to provide care or support to a relative or a person living in the same household as the employee because of a serious medical condition. According to the Labour Code, employees may request up to 5 working days in a calendar year from their employer, but special laws or collective agreements may provide for longer periods.

Carer's leave was introduced into the Labour Code last year by Law 283/2022 which transposes, among other things, Directive (EU) 2019/1158 on work-life balance for parents and carers.

Law 283/2022 introduced a further mechanism to ensure work-life balance for employees, namely the possibility for employees to be absent from work in the event of a family emergency caused by illness or accident, which makes the immediate presence of the employee indispensable. In the case of family emergencies, Law 283/2022 provided from the outset that days of absence are made up until the employee's normal working hours have been covered in full, the method of making up the days of absence being agreed with the employer.

Given that recent legislation has introduced new rights for employees in terms of granting days off, and that the new regulations do not set out sufficiently clear and detailed rules on how to request and grant such rights, companies should consider developing internal policies and procedures for granting days off or introducing new rules in current policies and procedures, internal rules or collective agreements, as appropriate.

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