Since the start of the COVID 19 pandemic more and more employers are switching to remote work. In some instances, this was done voluntarily in others because of the push of the government on employers to introduce remote work whenever this was possible.

After 1.5 years of practical experience, we have summarized the most common challenges that employers had to face, and which are often not addressed in local law.

We have set out below the "pros and cons" for some of the main issues:

  • whether to introduce remote work by an agreement or an order
  • is it important to fix the exact place of work
  • what are the practical problems related to electronic communication

Contract or order

Under Bulgarian law remote work may be introduced only by mutual consent of both parties. However, by way of exception, the new COVID 19 legislation1 that was enacted last year provided for an additional option – employers were entitled to send unilaterally employees to work from home during the pandemic2. This seemed to be a practical and useful solution as it released employers with a larger number of employees from the obligation to arrange a meeting with each of them and negotiate bilateral remote work arrangements. On the other hand, whenever the parties enter into a bilateral agreement, they are free to negotiate specific terms. In contrast to the above, in case of unilateral decision of the employer, the latter is only entitled to change the place of work but not to introduce any other special arrangements.

In case of introduction of remote work by a unilateral order, all employees shall return back to the office immediately after the end of the respective pandemic (i.e. as established in the respective government acts). This means that employers shall be in a position to transition all remote employees back to office within a day- a task which seems almost impossible in case of a larger number of employees.

In contrast, whenever remote work is introduced by virtue of a bilateral agreement, the parties are free to agree on a duration of the remote work at their discretion.

It seems a straightforward approach to expect that employers will remain responsible for maintenance of any equipment provided by them to the employees for their work. However, it may be worth considering, whether the employer should not also undertake obligations concerning the repair and maintenance of equipment owned by the employees, in case they use it for their work. At the end of the day, the employer's main task is to ensure smooth and uninterrupted work of its employees irrespective of who holds the legal title over the equipment needed for the work.

Actual place of work

In case of an order introducing remote work, employers are only allowed to order employees not to work from the office. It does not seem reasonable, though, to expect from them to be in a position to determine the exact place of remote work of each employee.

This opens a large number of other questions such as:

  • Health and Safety

Health and Safety remains an obligation of the employer during remote work. Employers are mainly required to put in place appropriate Health and Safety instructions and notify their employees thereof. It seems, however, to be a challenging task to expect that employers will be in a position to instruct their employees properly in case they have no information about their actual place of work.

Employers are entitled to conduct inspections at the employees' workplaces. However, they will likely face additional difficulties to conduct Health and Safety inspections at the workplaces of their employees if they have no information where they are.

  • Equipment and consumables

Under the law, the employer is responsible for providing the equipment and consumables required for the remote work at its own cost. There is an option for the parties to agree otherwise which cannot be exercised in case the employer introduces remote work unilaterally.

This concerns obvious things such as laptop and internet but may also be extended to issues such as the electricity and heating bills.

  • Business trips

It is of utmost importance for the employer to know where the employee is located in fact whenever the employer considers a business trip. Otherwise, the employer will not be in a position to determine whether a specific meeting qualifies as a business trip or not. It is also worth noting that whenever an employee works remotely from another city, the trip to the office of the employer will qualify as a business trip.

  • Working abroad

In case the employees decide unilaterally to work abroad this may lead to severe consequences for the employer as its obligations for taxes and social security contributions may be completely different. Therefore, it makes sense to introduce a limitation on the employees to work abroad without the explicit consent of the employer. Such option is not provided for unilateral introduction of remote work which is an additional argument supporting the recommendation to employers, whenever possible, to opt for signing bilateral agreements.

  • How to fire someone – а Catch me if you can" movie version

It is almost impossible for the employer to fire any of its employees, but also to serve documents during remote work, except where the employer has managed to introduce electronic communication. In practice, if the employer is not aware of the actual location of the employees it takes a great effort to find them and serve them with any documents by the employer.

Electronic communication

Electronic communication seems to be the only reasonable option to communicate with the employees during remote work. Unfortunately enough, Bulgarian law remains very conservative on this topic and sets out a lengthy list of technical requirements that employers have to consider so that electronic communication is considered valid for the purposes of local law. As a cause – email communication is not sufficient, the new solutions that are already available on the market are still developing and often considered somewhat costly for small and medium sized businesses, employees need to be trained to start using the new technology and on top of this under the law employees are granted the option to withdraw their consent to receive electronic communication at any time at their discretion. In fact, this has the result, that employees may try to delay the service of official documents whenever they already anticipate "bad news". This puts employers in a very difficult situation as in fact even if they decide to invest into new technology, employees may easily make such efforts obsolete.

Remote working in an international context

The most natural cause of remote work becoming the "new normal" is that labour market grew from national to international. More and more often, employers start hiring employees located in other countries. In such case the following issues shall be considered carefully and are in fact often underestimated:

  • What is the most appropriate law to govern the agreement

On the one had employers wish to stick to their existing practices, on the other – the mandatory provisions of the local law of the employee will always prevail. Therefore, employers shall carefully consider the risks related to each of the two approaches.

  • Night work limitations

Depending on the exact location of the employee, the employee may have to work night hours so that it fits the working time of the employer. In such cases, it shall also be considered whether an additional remuneration is due for night work or not. The law allows the employer to exclude, among others, night work for remote employees.

  • Migration issues

Depending on the state where the employee is located it may be necessary to comply with certain migration provisions such as to conduct a market study, to be able to hire a limited number of foreigners only (i.e., from non-EU countries).

  • Local law requirements in the home state of the employee

Usually, the employer will have to pay at least social security contributions directly in the home state of the employee which requires the obtaining of additional local registrations, opening of a bank account, etc.

Putting in place additional insurances

In many cases employers have allowed employees for the first time to take equipment out of the employer's premises. Whenever such equipment has a higher value, it may be recommendable to put in place additional insurances. The same applies in case certain equipment has been insured already but insurances do not cover its taking out of the employer's premises.

All the issues set out above shall be considered carefully in each case so that the employer is aware of all risks and the potential mitigation strategies. Remote work seems to have expanded in a large number of sectors, a lot of employers have also seen an option to save costs by reducing their office spaces. It seems that remote work will remain at least as often practiced as nowadays. Therefore, appropriate procedures shall be put in place to ensure structuring of optimal arrangements with each employee.

Footnotes

1 The new acts include the new law Act on the Measures and Actions during the State of Emergency Declared by a Resolution of the National Assembly of 13 March 2020 and on Addressing the Consequences, changes to the Labour Code

2 A pandemic shall be declared officially by an order of the government which establishes a state of emergency or an extraordinary pandemic situation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.