29 October 2020
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What to do when an employee is subject to special health monitoring?

During the state of emergency in Serbia, which lasted from March 15 to May 6, 2020, there was a rule requiring persons entering the Republic of Serbia to self-isolate.  The end of the state of emergency saw this rule revoked. However, the ever-changing COVID-19 situation gave rise to new rules regarding special health supervision for citizens of the Republic of Serbia who have recently returned from abroad, which indirectly brings back self-isolation.

Namely, since September 18, 2020, a rule has been in place that those returning to Serbia must submit to special health monitoring for 10 days.  A Notice issued by the Ministry of Health states that citizens shall receive a health warning when crossing the border.  The first step in fulfilling the obligation imposed by the Notice is to fill out an online test-questionnaire to determine whether you should contact the COVID clinic.  If you have not been instructed to report to the COVID clinic, you should fill out the online questionnaire again 10 days after the first one.  If the results show that there is no cause for concern, you shall no longer be subject to special health monitoring.  If you are unable to fill in the online questionnaire, you should contact the Public Health Institute in your city where you will receive further instructions.

Moreover, the Crisis Staff of the Republic of Serbia decided at the Meeting on October 22, 2020, to introduce rapid antigen tests, where it is the appropriate indicated test, which means faster diagnostics of COVID-19.  Furthermore, at the same Meeting, it was stated that PCR tests for entry into the country have not yet been introduced, but that there is a possibility of this measure being introduced in the future.

Despite special health monitoring not being defined as self-isolation, it serves to limit movement and contact with others, which implicitly reintroduces self-isolation.

What is the interplay between this measure and the rules regarding safety at work, considering the effect of this provision?

The Rulebook on preventive measures for safe and healthy work to prevent the occurrence and spread of epidemics of infectious diseases requires employees to inform their employer if they suspect they are displaying symptoms of COVID-19, or suspect that other employees or family members are displaying symptoms.  Employees subject to special health monitoring could claim that he/she is in some sort of self-isolation, that it is an issue of health and safety at work, and that working at the employee’s workplace could present a risk.  That raises an issue regarding the employee’s work while subject to special health monitoring.  In short, it all depends on the employee’s health while subject to special health monitoring.

If the symptoms are such that the employee is unfit to work, he/she will contact a doctor who will sign-off on sick leave.  In that case, under the Labor Act, the employee is required to inform the employer about his/her inability to work and submit the medical certificate within three days of the day he/she is temporarily unfit to work.

What happens if an employee who has returned from abroad does not have any COVID-19 symptoms while subject to special health monitoring?  Would the employer’s decision to fire an employee be justified?

In order to steer clear of this legal gray area while remaining within the confines of the provisions regarding health and safety at work in the extraordinary circumstances caused by the epidemics of COVID-19, employers should find a way to regulate the position of employees who are subject to special health monitoring but who are not displaying any COVID-19 symptoms.  One of the safest possible arrangements is for the employee to work from home while subject to special health monitoring which could be regulated by an annex to the employment contract.  This arrangement is legally sound and benefits both sides.  In his Statement of October 21, 2020, the Minister of Labor emphasized that those who work from home must have the same rights as those who work at the employer’s premises and that no difference in treatment of the employees should exist based on the fact whether they work from home or at the employer’s premises.

It is clear that the current situation poses a challenge for both employers and employees. Hastily made decisions by employers in relation to employees subject to special health monitoring can be very risky.  For the business to run smoothly on the one hand, and to safeguard the health and well-being of employees, on the other, it is necessary for both employers and employees to adhere to applicable rules.  Especially, it is important that both parties work to establish trust and reach a mutual agreement for the benefit of both parties, especially to ensure the minimum rights and obligations of employees guaranteed by the Labor Act.  Social dialogue plays a key role in achieving a solution that is best for both parties in the employer-employee relationship.