During the COVID-19 pandemic, the notion of suspension of employees has become a daily matter of many companies, because many had to make a decision about employees who had decided not to vaccinate — to suspend them or to place them on a furlough. At first, everything seems simple — prepare an order and suspend an employee, however, in practice situations may differ, therefore we have summarised a few possible issues and explanations on the action in such situations.
The matters on suspension of employees have been stipulated in Section 58 of the Labour Law providing that suspension from work is a temporary prohibition, imposed by a written order of an employer, for an employee to be present at the workplace and to perform work, without disbursing remuneration to the employee during the period of suspension. The same section provides that the maximum term of suspension is 3 months and the employer’s rights to terminate the employment contract during the suspension period.
There are two instruments that can be used to keep employees away from work for a certain period of time: suspension and furlough. Although these terms are very similar, there are some differences, too. Furlough is applicable in a wider range of cases, therefore it can be applied in almost all cases, when an employee is not employed due to his/her fault, moreover, furlough does not have any time restrictions, as during furlough employees can be reassigned to fulfill duties not provided in the contract. Suspension, however, has a maximum term of 3 months, during which the employee cannot be reassigned.
The procedure stipulated in the Labour Law is different for suspension and furlough, namely, suspension can be executed only via written order that provides a temporary prohibition for the employee to be at the workplace and work; regarding furlough, on the other hand, the Law does not provide any criteria and a written order is not required. But we recommend preparing an order also in case of furlough to be able to prove your actions in the event of disputes.
The text of the order has to be customized in each company. Below we have provided a sample order that initially requires a listing of reasons why the order was issued:
Under Order No. 720 of the Cabinet of Ministers dated 9 October 2021 (CM Order), an emergency was declared in the Republic of Latvia on 11 October 2021. Under Article 5 of the CM Order, the employer is obliged to assess every employee’s work duties and work conditions at the workplace determining the risk of infecting and possible risk for other people’s health (risks of infecting). Based on the assessment of the above risks of infecting at the workplace, the employer is obliged to request for the employee to have a certificate of vaccination or recovery, if any of the conditions referred to in Articles 5.7.1–5.7.3 of the CM Order applies. The employer has conducted the above assessment of the risks of infecting regarding its employees whose workplaces are stores of the employer in the Republic of Latvia.
Moreover, the order has to include an explanation why it applies to the respective employee or employees:
The employer has detected that the employees fulfill their duties inside, in a restricted area where the employees consult, and service store visitors, and are in the same room with the visitors of the employer’s store. In the premises of stores (except at the cashier’s machines), employees shall be separated from the visitors of stores with protective walls or other means. Therefore, the employees, for most of their work time, are in direct contact with clients, in direct contact with a large number of people, and in contact with a large number of people whose health condition is not known.
The employer has detected that the employees working in the employer’s stores are subjected to the risk of infecting and possible risk to other people’s health exists. Therefore, the employer has detected that the conditions referred to in Article 5.7.1 and 5.7.2 of the CM Order apply. Consequently, the employer is obliged to determine that those employees who take positions subject to the above risks of infecting would have a certificate of vaccination or recovery to fulfill their duties in the employer’s stores.
The employer hereby informs that in line with Article 5.2 of the CM Order, if the employee has not started vaccination or completed it within the prescribed term, the employer shall suspend the employee from the fulfillment of his/her duties. In line with Section 58 of the Labour Law, the employer does not pay remuneration for work to the employee during the period when the employee has been suspended.
In 2021, mass media informed that a record number of certificates on the incapacity of work have been issued in the country, causing concerns that employees use it as a possibility to delay a decision on vaccination. The employee cannot be suspended if at the respective date he/she is on vacation or the doctor has determined incapacity of work. In this case, the employer has to wait until the incapacity of work or vacation ends, and only then the employee can sign the order on suspension.
It is important to note that Section 152 of the Labour Law provides that the time which gives the right to annual paid leave shall include the time during which the employee did not perform work for justifiable reasons. However, if the employee has been suspended because he/she does not have the required vaccination certificate or certificate of recovery from COVID-19, the employee is to blame for this situation therefore the vacation days are not accrued.
There are certain groups of people who are protected by law. Pregnant women are one of the groups. The Law on the Management of the Spread of COVID-19 Infection provides that employer is prohibited from terminating employment relationship with a pregnant woman, and with a woman in the period following childbirth up to one year, but if the woman is breastfeeding a child — throughout the period of breastfeeding, but not longer than until the child reaches two years of age. These women cannot be suspended even if they do not have a vaccination certificate or certificate on recovery from COVID-19.
How should the employer act? The above employees can be transferred to another suitable work or they can fulfill their duties remotely if the specifics of work permit it. If none of the above solutions is possible, if the respective employee has decided not to vaccinate, the permitted solution is placed on a furlough, retaining the remuneration in the number of average earnings.
If pregnancy has occurred during the suspension, while the Law on the Management of the Spread of COVID-19 Infection is applicable, the employee has to inform the employer that she is pregnant and provide an appropriate statement and the employer has to terminate the suspension and cancel the order.
It is possible that the employee is suspended and the reason for suspension has been eliminated and the employee has vaccinated or obtained a certificate confirming recovery from COVID-19. In this case, to restore the employee at work, a new order shall be issued.
The text of the order can be as follows:
“Under Order No. 720 of Cabinet of Ministers “Regarding Declaration of the Emergency Situation” dated 9 October 2021 (CM Order), an emergency has been declared in the Republic of Latvia. In line with the Employer’s order dated 15 November 2021, the Employee was suspended from work. However, the Employee has started vaccination against COVID-19 and on 29 January 2022, the COVID-19 vaccination certificate will become valid.
Therefore, the Employer hereby cancels the order of 15 November 2021, under which the Employee was suspended from work due to lack of the certificate on COVID-19 vaccination or certificate confirming recovery from COVID-19. This order becomes valid provided that the Employee has presented an interoperable certificate that complies with the requirements of the CM Order. This order remains in force until the Employee has an interoperable COVID-19 certificate confirming vaccination against COVID-19 or recovery from COVID-19 and that complies with the requirements of the CM Order.
As mentioned above, the Labour Law provides a maximum suspension term of 3 months. However, what to do if this term has expired but the employee still cannot present a vaccination certificate or certificate on recovery or a decision of doctors’ Concilium on postponing vaccination? The legislator has provided this as another basis to terminate the employment contract.
Section 7 of the Law on the Management of the Spread of COVID-19 Infection provides that if after the maximum period of suspension or after furlough due to the fault of an employee which lasts for more than three months an employee (official) has not obtained the vaccination or recovery certificate without an objective justifying reason, an employer has the right to terminate employment (service) relationship with him or her without delay, disbursing the severance pay in the amount of one monthly work remuneration (monthly wage), but if a piece-rate wage has been specified for the employee — in the number of average earnings of one month.
The same section provides possibilities to employees: employee who has not obtained the vaccination or recovery certificate is entitled to give a notice of termination of the employment contract without complying with the time limit specified in Section 100 of the Labour Law. An official who has not obtained the vaccination or recovery certificate is entitled to terminate the service relationship without delay.
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