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The Final Teleworking Rules – Home Office

Employment, labour law, Medium-sized companies, News, Start-ups / / , , ,

We are pleased to inform you that on 17 December 2021 the new regulations were adopted regarding the teleworking – home office – labour law and the related occupational safety and health and tax rules.

The good news is that the final regulation repeated without any change the rules was introduced on 3 July 2021 in the Decree No. 487/2020 of 11 November 2020 (“Summer Rules”). At that time, it was uncertain if the Summer Rules would survive the end of the state of emergency.
Just remind you, the Summer Decree extended the definition of teleworking to the employees who work from their home in 2/3rd or more of their annual working hours and perform their works via IT system.

In addition, the employers might apply different occupational safety and health rules regarding such remote workers, as the employer was obliged to inform the employee about the safety requirements, and the employees were liable for selecting a working pace that is compliant with the requirements disclosed by the employer.
The employers may provide their employees with tax-free allowances for teleworking up to 10% of the monthly minimum wage.

The new rules incorporate all the transitional provisions of the Summer Rules on teleworking into the relevant Acts concerned Act I of 2012 on the Labour Code, Act XCIII of 1993 on Labour Protection, Act CXVII of 1995 on Personal Income Tax), and become part of the legal system and will remain with us in the long term.

The new legislation is particularly important as it mitigates the uncertainty whether the employment contracts already amended and made compliant with the Summer Decree should be amended again once the state of emergency situation has ceased to exist and another rules would be introduced.

The good news for those who have already implemented the teleworking Summer Rules and amended the employment contract accordingly, there is nothing to be done neither now nor when the new regulations enter into force.

For those who have not yet taken advantage of the possibility offered by the Summer Rules, we recommend using the time for implementing the rules until the new statutory rules enters into force the at the end of the emergency, which is unknown future date.

Should you have any questions regarding the above, feel free to contact us.

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New guidelines of the EDPB on data controllers and data processors

Company groups, Data protection, Medium-sized companies, News, Start-ups / / , , , , ,

The European Data Protection Board (“EDPB” or “Board”) has adopted the final version of guidelines no. 07/2020 on the concepts of controller and processor in the GDPR on its meeting of 7 July 2021, which renews and replaces the previous guidance no. 1/2010 of the Article 29 Data Protection Working Party on the same subject.

The definition of roles of data controller and data processor has been and continues to be the most controversial issue of data protection law, both during and prior to the entry into effect of the GDPR, as the assumed role determines the obligations and thus the corresponding responsibility. For this reason, the new EDPB guidelines are essential for all actors involved in data processing activities.

  1. Identifying the data controller

According to the GDPR, the person determining the purposes and means of the processing of personal data shall be considered the data controller. Among the elements of the concept, the new guideline explained the means of data processing in most detail, implementing a sharper distinction compared to the previous guidance.

In the opinion of the Board, when identifying the data controller, the means of data processing shall be understood only as the essential means, which are the following:

  • type of personal data which are processed
  • duration of the processing
  • the categories of recipients with access to the data (including transfers of data)
  • the categories of data subjects

The EDPB also emphasizes that actual access to personal data is not a requirement to be considered the data controller.

  1. Identifying the data processor

According to the GDPR, the data processor is the person who performs the processing operations on behalf of the data controller. The EDPB identified two explicit and one implied condition for the identification of the data processor. The two explicit conditions are as follows:

  • The data processor is a separate entity from the data controller;
  • The processing operations are performed solely on behalf of the data controller and the data are not processed for any purpose or interest other than those of the data controller.

In addition to the above, the third implied condition is that the discretion of the data processor includes the choice of non-essential means of data processing, such as the location of data storage, the software and methodology used for data processing operations.

There must be a written contract between the data controller and the data processor regarding the data processing, the absence of a contract constitutes an infringement of the GDPR on part of both actors.

The EDPB emphasized that the GDPR also imposes stricter obligations on data processors compared to the previous regulation. In addition, in the data processing agreement, the data controller may indirectly hold the data processor responsible for the performance of the data controller’s obligations under the GDPR, therefore, in order to limit the data controller’s liability, the most important thing is to select a responsible data processor, and conclude a processing agreement which duly takes into account all responsibilities.

  1. A person under the direct control of the data controller or data processor

Compared to the concepts of data controller and data processor, the role under the direct control of the data controller or data processor set out by Article 29 of the GDPR is less frequently discussed, but in practice the majority of natural persons perform data processing operations in this capacity.

This category includes a person who is not separate from the data controller or data processor. For example, neither the managing director nor a department of the company can be considered a separate entity from the company.

This category also includes a person who, although carrying out processing operations on behalf of the controller, has no independent decision-making power over these operations at all. Directly under the direct control are mainly workers and employees, but it is important to note that from the point of view of data protection law, not only workers employed under the Labour Code should be considered as employees, but also, where appropriate, staff employed under a service or agency contract.

When identifying direct control, in addition to the type of legal relationship, it is therefore necessary to examine the decision-making rights of the individual, his or her integration into the organization of the data controller or data processor, and the control exercised by the data controller or data processor.

For persons under direct control, the GDPR contains a single requirement that personal data may not be processed contrary to the instructions of the data controller. It is also possible and recommended in case of the persons under direct control to impose the obligations of the GDPR, as well as to sanction any conduct that infringes data protection law, in a contract or internal regulations.

Should you have any questions regarding the above, feel free to contact us.

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On the rules of travel in case of immunity

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On 29 April 2021, by Gov. Decree No. 203/2021. (IV. 29.) (hereinafter: “Gov. Decree”) the Hungarian Government has made it possible for those with immunity against the new coronavirus to travel abroad and return to the country without being subject to epidemiological travel restrictions. The Gov. Decree entered into effect on the day it was announced, on 29 April 2021 at 11 p.m.

On 29 April 2021, by Gov. Decree No. 203/2021. (IV. 29.) (hereinafter: “Gov. Decree”) the Hungarian Government has made it possible for those with immunity against the new coronavirus to travel abroad and return to the country without being subject to epidemiological travel restrictions. The Gov. Decree entered into effect on the day it was announced, on 29 April 2021 at 11 p.m.

Exemption from travel restrictions was not previously part of the third phase of lifting restriction, however, as we have indicated, further regulation was expected on the issue.

The change will exempt those who:

  1. have an immunity certificate issued in Hungary, in accordance with Gov. Decree No. 60/2021 (II. 12.) on the certification of immunity against the coronavirus.
  2. have a immunity certificate issued in a country with which Hungary has concluded an agreement on the recognition of immunity. At the present, Hungary has such an agreement with Serbia, Montenegro, Slovenia and Bahrein.

In the case of countries with which Hungary has not concluded an agreement, the person entering cannot be exempted from travel restrictions on the grounds of immunity, regardless of whether he or she has been vaccinated.

For the sake of clarity, currently Slovenia is the only country in the European Union Member State with an agreement.

The rules of business purpose travel have not changed

Should you have further questions feel free to contact us.

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On the third phase of lifting restriction

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On 26 April 2021, by Gov. Decree No. 194/2021. (IV. 26.) (hereinafter: “Gov. Decree”) the Hungarian Government has decided on the third phase of lifting emergency restrictions, which will become effective on the day after reaching overall 4 million administered first dose vaccinations.

1. The curfew shall be amended to start at midnight instead of 11 p.m.

2. Those with immunity certificate or under the age of 18 will once again be able to visit cinemas, theatres, sporting and cultural events, sports facilities, museums, libraries, zoos, accommodations, and also the indoor premises of catering establishments (hereinafter jointly referred to as “reopening stores”).

Employees of reopening stores may be exempted from the obligation to wear a mask at the discretion of the employer if they have an immunity certificate. In addition to occupational safety risks, employers must also consider the associated data protection risks, since exempting employees from wearing a mask requires collecting data on the fact of immunity, which is a data related to health, therefore sensitive data.

3. It is important to note that only some of the restrictions are lifted, and the following rules remain in force for the time being:

– The announced Gov. Decree does not amend the regulation of travel restrictions.

– It remains obligatory to wear a mask in public areas, immunity certificate does not grant an exemption from this rule.

– For the time being, the immunity certificate does not grant an exemption from the curfew either.

– Private events can be attended by a maximum of 10 people.

– Organizing or attending music and dance events is prohibited.

Further regulation is expected in the lifting of restrictions.

Should you have further questions feel free to contact us.

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COVID-19 vaccination: what data can employers in Hungary process on employees’ status?

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The Hungarian National Authority for Data Protection and Freedom of Information has published its position on the processing of data relating to employees’ COVID-19 vaccination status. This article gives details.

On 1 April 2021, the Hungarian National Authority for Data Protection and Freedom of Information (the ‘Authority’) communicated its position on vaccination data. This position applies solely to employees and only applies during the epidemic situation.

The Authority highlights that the data on vaccination may only be processed if the employer takes effective and necessary occupational safety measures based on the data collected. This means that if an employer decides to process this data, it will be obliged to take, document and, if necessary, justify occupational safety measures and decisions based on it. If the employer does not use the collected data, it will breach the principle of storage limitation, which is illegal in all cases.

As a result, the employer must prepare an occupational safety risk analysis to assess potential occupational exposure to COVID-19 infection. Data on the employee’s protection (i.e. the fact of vaccination or the fact that s/he has been infected) can only be processed if, on the basis of the risk analysis, it is necessary for certain jobs or group of employees.

The Authority mentions two extreme examples to illustrate whether it is necessary to process the data on protection:

  • In the event of an employee being on permanent distance work, it is obviously cannot not possible to establish there is a need to process this data.
  • For an employee repairing and maintaining medical and other equipment in COVID-19 wards of hospitals data processing is necessary.

In our opinion, there are several jobs between these two extremes where the necessity of processing  data on COVID-19 protection can be demonstrated.

Prior to this data processing, the employer has to determine its legal basis. For this, it is important to emphasise that the fact of protection qualifies as data concerning health, which belongs to a special category of personal data. In view of this, it is our opinion that the appropriate legal basis for processing data on COVID-19 protection will be the legitimate interest of the employer in fulfilling its obligation to ensure occupational safety. In order to establish legitimate interest, employer has to carry out a balancing test striking a balance between its obligation to provide occupation safety and employees’ right to privacy. It is important to note that the employee’s consent will not be regarded as appropriate legal basis, as the voluntary nature of this consent may be questionable given the subordinate relationship between employee and employer.

In addition, the employer has to prepare data processing information in which it must set out, clearly and in a sufficiently detailed manner for employees, the purpose and legal basis of data processing, the period of data retention and the scope of individuals accessing the data. Data subjects must also be informed of the possibility of exercising their rights under the GDPR and of the means of accessing remedies.

If all conditions are met, the employer may request display of the digital application provided by the Electronic Health Service Space operator, or presentation of a certificate of protection, at the most.  No copies can be made of the certificate on protection, only the fact an employee is protected. If known, the duration of protection may be recorded. No further data can be lawfully collected and processed by the employer for the purpose of proving protection against COVID-19.


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Stricter lockdown rules and extended economic protection arrangements

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By the Gov. Decree No. 104/2021. (III. 5.) (“Gov. Decree”) the Hungarian Government has decided to implement stricter lockdown rules, which shall apply from 8 March 2021.

The most important changes are summarized below:

In public and in public places, everyone shall wear a mask. Further, everyone shall keep a social distance of 1.5 meters from others.

Closure of retail stores and service provider

In total 30 categories of retail stores and service providers may be open between 8 and 22 March 2021. All other retail stores and service providers must be closed.

Rules regarding remote work

The Government is asking, however not compelling employers to apply home office work. Although, the Labour Code does not regulate home office work, from our point of view this phrase used by the Gov. Decree includes all types of remote work.

Accordingly, in case the employer is able to ensure the healthy and safe working environment at the contractual workplace, working at the employer’s premises is still possible and lawful.

Rules in connection with education

Kindergartens and schools shall be closed until 7 April.

It cannot be excluded that the rules in connection with education will be extended to the period following 7 April 2021.

Economic protection arrangements

Gov. Decree No. 105/2021. (III.5.) includes the economic protection arrangements related to the above stricter lockdown rules from which it is worth highlighting that the undertakings conducting the activities affected with the current closure as actual primary activity may also apply for the sectorial wage subsidies for March 2021 as well as are not obliged to pay social contribution tax (“szoc.ho”) upon the salaries paid to their employees for March.

The measure of the wage subsidy is 50 % of the employee’s gross salary, and the eligibility criteria is that the employee’s salary must be paid for the period affected by the closure as well as the employment relationship must be maintained, i.e. may not be terminated with notice or with mutual agreement until 30 April 2021.


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Extension of protective measures in Hungary

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Extension of protective measures applicable during the period of state of emergency

I. According to the Government Decree 27/2021. (I. 29.), the Government has once again declared a state of emergency in the entire territory of Hungary from 8 February 2021, which is expected to last until 23 May 2021 according to the Act I of 2021 on the Prevention of the Coronavirus Pandemic, which entered into force 22 February 2021. During this period, the Government may decide on additional extraordinary measures by decree. 

II. The Government decreed on the extension of protective measures applicable during the state of emergency by Government Decree 80/2021. (II. 22.). Under the Decree, the emergency measures are expected to remain in force until 23 May 2021.

Please note, that depending on the change of the epidemic situation, the state of emergency may be extended by the Government or re-announced at a later date, additional restrictions may be introduced, or certain restrictions may be maintained even after the state of emergency.

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New COVID-19 restrictions in Hungary: consequences for employers

Company groups, Employment, labour law, Medium-sized companies, News, Start-ups, Trade affairs / / , , , , ,

The restrictions (of Gov. Decree 484/2020 (XI. 10.)) apply as of 11 November 2020 for the whole of Hungary, effective until 11 December 2020. These restrictions may be prolonged if necessary.
The current rules concerning wearing masks, social distancing and border crossing remain in effect, while wearing masks is now obligatory in public spaces designated by the local councils in cities exceeding 10,000 inhabitants.

I. Curfew between 20:00 and 5:00 with an exemption regarding going to work

During the curfew, only people going from their homes (place of residence) to work and back home from work can be in public spaces. A sample of the certificate to be issued by the employers can be found on the Government website: https://kormany.hu/hirek/kijarasi-tilalomrol-szolo-igazolas

II. Rules regarding education

Nurseries, kindergartens and primary schools remain open for those under 14 years of age. Online education has been introduced from grade 9 in middle schools and colleges/universities, and dormitories are closed.

III. General ban on events

All events are banned. This also applies to all professional events held in person (conferences, workshops, etc.).

IV. Restrictions on trade and catering

Restaurants are closed and only takeaway and home delivery are allowed, however, factory canteens may remain open. Shops, stores and other services except for pharmacies and petrol stations must close at 19:00, after which only those working there may stay on site. Hotels may only accommodate guests arriving on business, economic or education purposes.

V. Sanctions

In the event of violation of the rules applicable to events or institutions, shops and facilities, the police may close the area, premises or institution (except for educational institutions) for a period of one day to one year and impose a fine of HUF 100,000 to HUF 1,000,000.

VI. Economic protection measures

In order to protect jobs, the Government has also introduced economic protection measures (Decree no. 485/2020. (XI. 10.)), as follows.

1. Tax allowance
For November 2020 employers operating in the scope of activity listed in the Decree shall not need to pay social contributions and vocational training contributions. Small entrepreneurs within the scope of activity listed in the Decree do not need to count personal payments to their small business tax base relating to employees who would have been dismissed due to the state of emergency, provided that these employees are not dismissed and receive their salaries.

2. Provision for hotels
The state will reimburse 80% of the price (net income) of bookings booked for within the next 30 days and received by the hotels registered in the National Tourism Data Providing Centre (Nemzeti Turisztikai Adatszolgáltató Központ) until 8 November 2020, provided that the hotel employees are not dismissed and receive their salaries.

3. Wage subsidies
50% of the wages for November 2020 of the employees of restaurants and leisure facilities listed in the Decree will be reimbursed by the state in the form of a subsidy, provided that the employees are not dismissed and receive their salaries.

The ‘actual main activity’ is the activity which generated the most revenue, which must be at least 30% of the revenue in the previous six months.

There are still many open questions regarding the implementation of the governmental measures described above, we shall provide information on possible further measures after they have been published.

Travel restrictions extended again

Company groups, Medium-sized companies, News, Start-ups / / , , ,

Please note that by adopting Gov. Decree No. 469/2020 (X.29.) the Hungarian Government has extended the travel restrictions and border control again until 1 December 2020.
Entry to the country shall remain to be subject to restrictions or otherwise allowed only in exceptional cases in line with the previous communications.
Should there be any change concerning the travel restrictions or entry to the country, we will provide further information.

Should you have any questions regarding the above, feel free to contact us.

 

Exemption from work during adoption

Employment, labour law, Medium-sized companies, News, Start-ups / / , , , ,

Pursuant to the amendments of Act I of 2012 on the Labour Code (“Labour Code”) effective as of 1st September 2020, the employee shall be exempted from the requirement of availability and from work for a maximum of 10 working days per year during the period of preparation for adoption.

The pre-adoption phase provides an opportunity for parents intending to adopt and the child to be adopted to meet, introduce themselves and start to get to know each other before the adoption. Also during this period, the living conditions of the parents wishing to adopt will be assessed, counseling will be provided by the child protection service and, if required, a free adoption course will be conducted.
As the procedure involves a number of tasks for the employee, the legislator considered it necessary to exempt the employee from his/her requirement of availability and work during this period.

The exemption is available to both prospective parents, who are entitled to an absence fee for this period. The exemption shall also apply in the case of an executive employee, from which the employment agreement of the executive employee may not deviate.

The conditions for claiming the exemption are defined by the Labour Code as follows:
– exemption from availability and work is possible on the basis of a certificate issued by the adoption organization;
– the employee may claim the exemption within 90 days following the issuance of the certificate;
– the employee shall inform his/her employer at least 5 working days in advance of his/her intention to claim the exemption;
– the employee must be exempted on the dates specified in his/her request, therefore it is up to the employee to determine the dates;
– the Labour Code does not stipulate that the exemption of 10 working days should be granted to the employee only continuously, therefore the employee may request that the exemption be granted in several installments within 90 days from the issuance of the above-mentioned certificate.

If you have any questions regarding the above, please feel free to contact us.

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