Though the number of detected infections is relatively low in Hungary as of the day of this update, the emergency caused by the coronavirus is already generating a series of significant management problems for companies in the region. To help employers deal with the challenging issues raised by COVID-19, we believe it is useful to illustrate the current regulatory framework by providing some practical suggestions for the management of this health emergency.
Providing Conditions for a Safe and Healthy Working Environment
Employers are required to provide conditions for a safe and healthy working environment under the laws of Hungary, which places them under an obligation to take actions aimed at mitigating the risks associated with COVID-19 and limiting the exposure of their employees to infection, including – for example – the following:
- directing special attention to cleanliness of work spaces by disinfecting restrooms, checking ventilation systems, providing hand sanitizers and encouraging employees to pay special attention to their personal hygiene;
- re-evaluating whether any previously arranged meetings, workshops, business travel or other planned events are necessary and justified in view of the COVID-19 emergency and issuing cancellations or opting for videoconferencing or other forms of remote access if possible and informing prospective participants/organizers accordingly;
- putting in place special provisions regarding handling hard copy correspondence and deliveries in order to limit exposure of employees to direct and indirect contact with potentially infected persons (e.g. by segregating received parcels and opening them only after certain time – typically 24 hours – have elapsed); and
- reviewing rules and practices applicable to access of company premises, in order to limit unnecessary person-to-person contact and placing/sending notices accordingly.
Keeping Employees Informed
Employers should keep their employees informed of developments as new information becomes available and governments or public authorities issue new recommendations or introduce rules applicable to the workplace or the employer, which information should optimally include the following:
- general information on COVID-19, including the associated symptoms (fever, tiredness, dry cough, muscle pain, shortness of breath, sore throat, nasal congestion);
- list of high risk countries or regions (currently officially designated areas of concern include: China (mainland), Hong Kong SAR, Macau SAR, Iran, Italy, South Korea and Israel);
- employee obligations in the event of detecting symptoms, including when symptoms are detected on employees themselves or on their friends and family;
- recommended course of action in terms of seeking medical help; and
- information on processing of employee data in relation to the emergency (see below for further details).
Preparing a Pandemic Business Continuity Plan
Employers are advised to adopt pandemic business continuity plans, i.e.: preventive steps designed to reduce exposure to the virus; counter-measures to be taken in face of potential infection; preliminary assessment of data protection aspects of the applied measures; the allocation of tasks and responsibilities within the organization in face of viral emergency; creating effective emergency communication channels.
In addition to the regulation of the above mentioned issues (informing employees, attention to cleanliness of work spaces, cancelling events or organizing them remotely, reviewing access to premises), such Action Plans should also allocate pertinent responsibilities within the organization and specify the procedure followed by the employer in the case of employees returning from high risk areas and infected or potentially infected employees. As part of the pandemic business continuity plan, it is recommended to establish an enhanced third party monitoring regime for clients and visitors entering an organization's direct area of operations and the concomitant restrictions. It is also recommended to regulate measures to be enforced (for example, partial, selective or complete prohibitions of entry onto an organization's premises).
Employers should also elaborate any special employee obligations arising in connection with the provisions of a Pandemic Business Continuity Plan, which may include – among others – those outlined below:
- employees may be required to report to HR (or a designated person) in the event of detecting symptoms associated with COVID-19 on themselves, their friends and family or co-workers;
- employees should be encouraged to seek medical attention if detecting symptoms or having been exposed to a threat of infection, check-up of such employees conducted by an occupational physician may also be mandated;
- employees may also be required to inform the employer if they have visited high risk areas or have plans to visit such areas (even if such previous or planned visit took place during their leave and was of private nature) – we note in connection with this that though requesting information on past and planned private trips is permissible, employers should be careful in terms of banning private travels to affected areas as the legality of such bans may be brought into question if the risk to the health and safety of the rest of the labour force is not deemed to be significant. Additionally, such bans may entail reimbursement obligations towards employees who have already incurred costs in connection with a planned trip;
- employers may encourage employees to work remotely (from their homes) or introduce mandatory work from home schemes on a temporary basis as a precautionary measure if the nature of the work performed by affected employees allows it (such mandatory work from home schemes may apply across the board or be limited to certain groups of employees); 1 and
- employers intending to introduce questionnaires or body temperature checks designated to survey their company's exposure to the risk of infections within their labour force should pay special attention to data protection concerns related to the processing of employee healthcare data (see below for further details).
As regards the procedures undertaken by Employers and concerning exposed employees we note the following and make the below recommendations:
- Employees diagnosed with Coronavirus infection will be placed under government mandated quarantine (in Hungarian: "járványügyi zárlat") in a designated healthcare facility. Leave of absence of such workers from work does not have to be remunerated by employers, as affected employees will be entitled to sick pay provided by social security.
- Employees returning2 to Hungary from high risk areas will be placed under a government mandated quarantine of 14 days in their homes ("home quarantine") 3 (in Hungarian: "hatósági házi karantén" vagy "járványügyi megfigyelés") in accordance with emergency government decree no. 41/2020. Observance of home quarantine will be monitored by law enforcement authorities and just as in the case of persons quarantined in healthcare facilities, breaches of quarantine may be criminally sanctioned. The government decree does not specifically regulate whether employees in home quarantine should be remunerated by their employer, but in our assessment of the current legal situation these employees will also be entitled to sick pay provided by social security or other state compensation. 4
- Employees potentially infected by Coronavirus should follow the protocol proposed by the Government's COVID-19 Task Force by contacting their GPs by phone if they detect any symptoms. Depending on their evaluation of the employee's account of symptoms GPs either (1) clear the employee for work; (2) request that the employee remain under voluntary self-isolation in their home; or (2) arrange for their transport to a healthcare facility for purposes of conducting a Coronavirus test – if positive they'll be quarantined as noted above, if negative, they should be encouraged to maintain self-isolation and repeat testing after a few days.
- Employees in voluntary self-isolation or self-isolation mandated by the employer's Pandemic Business Continuity Plan: may (1) work remotely and be paid their regular wages; (2) be placed on paid leave by employers either unilaterally – provided that a notice of 15 days is respected – or with their consent and be paid their absence fee; (3) take unpaid leave; 5 (4) be placed on gardening leave by employers and receive their regular wages; (5) be moved to part-time work with their consent; (6) – if they obtain a certificate from their GP – be placed on sick leave with entitlement to 70% of their absence fee during the first 15 days (or less, if they had taken a part of their annual sick leave earlier) and receive sick pay provided by social security for any subsequent days of absence; or (7) – if the employer uses a time banking system (in Hungarian: Munkaidőkeret) – schedules may be modified to allow employees to stay away from the workplace and allow employers to condense workable hours at a time when they may safely return to work. 6
- Employees whose roles are affected by government-mandated limitations on opening hours: Note that effective as of 17 March, the Hungarian Government has decreed that wholesale and consumer retail operations as well as restaurants and other catering operations (coffee shops, pubs, bars, etc.) have to be closed to the public between 15:00 (pm) and 6:00 (am). The decree emphasises that employees may be present at these workplaces and can be requested to work, but limited opening hours must be put in place vis-á-vis consumers/clients. Employers may amend the schedules of employees, but if – due to the lack of client traffic in the early hours of the morning – employers need to put in place reductions of working hours, then the options outlined above in connection with self-isolation may be applied in order to decrease the financial burden of employers who want to comply with the requirement of limiting opening hours, and avoid – if at all possible – terminating employees.
- Social distancing requested by employees: (1) Employee requests for remote work may be turned down by employees lawfully if the employee in question is not otherwise entitled to working remotely, e.g. based on their employment agreement or a remote work policy issued by the employer. (2) In our assessment employees may not lawfully refuse work on grounds of exposure to a risk of infection at the workplace unless they can demonstrate a direct and serious danger to their life or health and in view of the current spread of the COVID-19 crisis in Hungary these conditions are not applicable as of the date of this report – this is especially the case if their employer has complied with the obligation to mitigate risk of infection (this is all the more reason for employer to implement the above mentioned actions at least in part).
- Employees taking care of home-schooled children: The Hungarian Government suspended attendance in secondary and primary schools and most municipality governments instituted similar suspensions in the case of kindergartens and nurseries. Parents staying home to take care of their children may (1) work remotely and be paid their regular wages; (2) request being placed on paid leave by their employers and receive their absence fee; (3) take unpaid leave;5 (4) be moved to part-time work with the consent of the employer; or (5) be placed on sick leave and receive sick pay provided by social security if they obtain a certificate from their pediatrician and if the child they are taking care of is below 12 years of age.
Government Steps to Mitigate the Risk of Increased Unemployment
The Government of Hungary has not yet issued a general, overarching policy aimed at addressing the financial impact of the COVID-19 crisis on employers, it has however as of 19 March, put in place certain sector-specific policies affecting businesses operating in the tourism, catering, entertainment, gambling and film industries and companies undertaking event management, performing arts and sports services.
Employers in these sectors are exempted from payment of the social contribution tax and social security contributions – in the case of the latter, with the exception of the public healthcare contribution, payment of which continues to be obligatory but a temporary cap of HUF 7,710 (approximately EUR 20) per employee is applied. The temporary tax exemption/reduction will apply during March, April, May and June of 2020.
Processing of Employee Data in Relation to the Emergency
In regard of data processing attaching to employment relationships, the essential requirement, providing conditions for a safe and healthy working environment, and establishing all related data processing procedures, is the employers' task. In this framework, the NAIH has set out measures that can be reasonably implemented:
- Employers are advised to produce detailed information notices for their employees with the above mentioned content.
- Employers are also advised to communicate an information notice to external persons (clients, visitors, subcontractors), calling on them to disclose potential exposure to infection (business trips, proximity to infected persons) upon entry and follow the protocol put in place by the employer – notice should include reference to the processing of their data;
- According to NAIH's recommendations, employers should elaborate data protection aspects by amending privacy notices issued to employees if they opt to introduce special rules on business operations, business travel or remote work.
If an employee reports an assumed contact with the virus to his/her employer, or if the employer suspects, from the information provided by that employee, that he/she has been exposed to it, the employer may record the following data in connection with the report:
- time of the report and the personal data necessary for the identification of the employee concerned;
- any travel itineraries of employees – even if it was for personal reasons – that overlap with high risk areas and dates, as determined in the information notice of the employer;
- data on any contacts of employees with persons coming from risk areas as specified in the employer's information notice;
- measures taken by the employer based on the information available (for example providing the possibility to seek medical help from the company doctor).
The NAIH considers it acceptable to ask employees to fill questionnaires covering the above data if the employer, based on a preliminary risk assessment, comes to the conclusion that such suspension of the employee's right to privacy is necessary and proportionate to the scale of the emergency. However, it is important that the questionnaire must not contain information regarding health history and the employer must not require employees to attach health records to it.
Based on the communication of the NAIH, the legal ground for processing personal data in the above case is the legitimate interest of the employer. There may be stricter conditions for processing health data by the GDPR, as, in this case, the processing is necessary for compliance with legal obligations arising from legal requirements governing employment, occupational health and safety and social security.
The NAIH outlined that considering the current pandemic situation in Hungary, ordering the use of diagnostic equipment (in particular body temperature check) for all employees in general by employers is not proportionate.
However, in individual cases and with due regard to the circumstances, or based on employers' risk assessments, employers may order tests for employees having to work at stations of higher exposure to contagion. In view of a decree issued recently by the Government of Hungary explicitly permitting employers to take necessary and reasonable steps to check the infection status of their employees, we are of the view that these tests may be carried out by a the employer directly (i.e. without involving a healthcare professional or the occupational physician).
There is no clear guidance from the NAIH as regards sharing data on employee infection status with employees, clients, customers or business partners with whom an individual employee has been working.
In our view employers may provide information on self-isolation to other employees, however, the specific reasons and other background information of such self-isolation need not be communicated to the other employees to minimise the data being shared.
In our assessment, providing information on self-isolation exceeds the scope of data that can generally be shared with third parties (clients, customers, business partners). In any event, communication needs to be limited to the extent possible (e.g. inform only if an employee was in close physical contact with such third parties but no further personal data, e.g. the name of the employee).
What Should Companies and Employers Operating in Hungary Expect?
The Government of Hungary has declared a state of emergency (in Hungarian: "veszélyhelyzet") effective as of 11 March and the Prime Minister's Office is expected to continue issuing Government Decrees in the coming days and weeks, providing guidance and recommendations and regulating employer obligations in detail. We at Dentons Budapest are closely following these developments and are at your disposal if you, or your company require further information on applicable rules and best practices.
As you know, Dentons operates and serves client needs in 75 countries, including virtually every location where COVID-19 has already had a serious impact, so our firm is exceptionally well placed to address your queries and provide legal support as the global COVID-19 public health emergency continues to spread and create challenges for businesses worldwide. Please consult the Dentons COVID-19 (Coronavirus) hub for further insights and news items concerning various jurisdictions ( here).
Conclusions and Contacts
We suggest employers review their current data processing practices in light of the epidemic and recommend developing pandemic business continuity plans and information notices in order to minimize exposure to coronavirus, and that all risk assessment documentation regarding health data processing is kept on file.
We also recommend keeping detailed employee health records (e.g. reports) on suspected or actual infections, in compliance with data protection requirements.
Remember: while all organisations must be prepared to cope with the current uncertain and fast-changing situation, they must always follow the data privacy recommendations.
1. Remote work normally requires amending employment agreements or – at least – the introduction of a remote work policy, however temporary arrangements may be made for a period of up to 44 work days by the employer unilaterally. In order to facilitate social distancing, the Government of Hungary issued a decree which temporarily allows employers to unilaterally put in place remote work (work from home) arrangements. Employees should still be reminded – e.g. by means of issuing a remote work policy – that they must create a work environment in their homes which satisfies occupational health and safety requirements and conditions necessary for effective performance of their duties.
2. Hungarian citizens and EEA citizens who have obtained a certificate of Hungarian residence may continue to enter Hungary from high risk areas, but third country (non-EEA) citizens and EEA citizens without a certificate of Hungarian residence will be returned at border crossings. The Hungarian government suspended scheduled coach, train and airplane traffic to/from high risk countries until further notice.
3. Law enforcement authorities may issue special dispensations on a case-by-case basis.
4. The government decree establishes that mayors and councils of local municipalities are primarily responsible for organizing steps guaranteeing that the basic needs of persons under home quarantine are taken care of.
5. During such unpaid leave, employees are required to arrange for direct payments in order to remain entitled to social security services, including the services of the state public healthcare insurance, system. Employers may decide to cover/reimburse such payments effected by employees on unpaid leave, or alternatively, they may offer to provide partial remuneration of such leave based on a special agreement.
6. Working time schedules may be amended by employers unilaterally, and the Government of Hungary issued a decree which allows employers to disregard the normally applicable requirement of providing 96 hours of notice.
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