Bulgarian law with new requirements for employers under recent amendments to the Ordinance on Working Time, Breaks and Holidays

The amendments to the Ordinance on Working Hours, Breaks and Holidays have been promulgated in the Bulgarian State Gazette, no 78 of 30 September 2022. The amendments entered into force retroactively as of 1 August 2022. The new requirements placed on employers concern several groups of issues:

– The conditions and procedures for introducing duty in compliance with the labor legislation,

– The terms and conditions for employees to comply with the on-call duty,

– The conditions and procedure for taking leave to raise a child up to the age of 8 under the new Article 164c of the Labor Code, as well as for payment of monetary compensation from the National Social Insurance Institute for the period of this leave in accordance with the amendments to the Ordinance on Monetary Benefits and Allowances from the State Social Insurance.

1.         Duty – a need to change the Internal Regulations, clarify the procedure involving consultation with employees, issuing orders, preparing schedules, notifying employees and other strictly formal procedures as a responsibility of employers.

A new Section II-a – „On duty and on-call time“ is created in the Ordinance on Working Time, Rest and Holidays. The existing definition of duty time is expanded, and is defined as an arrangement of work under day or shift working where the employee is at his workplace and performing, or is in a state of readiness to perform, his work duties.  New in the „duty“ arrangements:

– Enables the employer to determine by order the positions for which a duty obligation is established, after consultation with professional organizations and employee representatives.

– After the order has been issued, the employer establishes named duty schedules which have to be kept for at least three years.

– The employer should introduce the approved schedules to the employees before they start working on them.

– The employer should pay the agreed salary for the employee’s on-duty time, as the legislator considers that on-duty time is included in the working time specified in the employment contract. In view of this, employers must also take into account all on-duty time when calculating the maximum duration of working time, inter-day and inter-week breaks, which means that they may not compact employees’ working time completely and only then add on-duty time extra to it. Now, on-duty time is already part of employees’ agreed working time.

Practically, the new amendments to the Ordinance on Working Time, Breaks and Holidays require employers to update the Internal Regulations by supplementing them with the new changes and making them known to their employees. In addition, employers must periodically draw up named, weekly and monthly schedules in accordance with the requirements of the Ordinance on Working Time, Rest Periods and Holidays and issue an order on the posts for which a duty obligation may be established.

2.         On-call work – additions to existing arrangements, clarification of procedure, new requirements regarding agreements with employees who should undertake on-call work.

With regard to the regulation of on-call work, the Ordinance on Working Time, Breaks and Holidays repeats the definition of on-call work from Ordinance No. 2 of 22 April 1994 on the procedure for establishing an employer’s obligation to be on duty or for on-call work. According to the definition given, on-call work is to be regarded as an employee’s obligation to be available to the employer outside the undertaking’s premises in readiness to start performing his work tasks, when necessary, which distinguishes it from on-duty work. The on-call time shall not be counted as working time. What is new in the arrangement:

– The on-call obligation should be agreed in an individual and/or collective agreement. In addition, the time required for the employee to attend work should be stipulated in the employment contract, where an obligation for the employee to be on call for the employer has been introduced.

– A requirement is introduced for the employer to approve named schedules of on-call time, which should be kept for at least 3 years, and to introduce them to employees in advance.

– The employer issues an order where an employee’s or worker’s on-call duty to the employer is specified, setting out the date and time of reporting for work and the duration of the work involved. This order must be made within 3 days from the day on which the work was performed. The introduction of this requirement is based on the fact that on-call time, unlike a duty time, is not counted as working time and is paid at two statutory rates depending on whether or not there is any effective work. The employer pays the employee for the period of standby an additional wage with a minimum wage rate of BGN 0.10 per hour in accordance with the requirements of the Ordinance on the structure and organization of wages. Separately, work actually performed during on-call time is paid as overtime (with a corresponding increase of between 50% and 100% on the basic wage for each hour actually worked). The requirement for the employer to make a follow-up order relates to the need to report the work actually performed as overtime from the employee’s or worker’s obligation to be on-call to the employer.

– The maximum on-call time requirements, as well as the existing restrictions introduced by Ordinance No. 2, remain unchanged and have been supplemented without changes in the Working Time, Rest and Holidays Ordinance, without repealing Ordinance No. 2 at this time.

The new changes introduce a requirement for the employer to make employees/workers aware of the approved on-call schedules to meet their obligation to remain on call. This requires employers to regulate in the Internal Regulations how employees are to be made aware of the approved named working time schedules for the aggregate calculation of working time, for duty time and for on-call time, as well as how the employee is to be notified of his/her attendance at work under the obligation to remain on-call. Notification of employees and workers shall be carried out in accordance with the Ordinance on the type and requirements for the creation and storage of electronic documents in the employee’s labor file, subject to specific regulatory restrictions, which include the mandatory use of a qualified electronic signature by the employer, communication via an electronic registered mail service, etc. This requires the introduction of the necessary technical and software solutions by the employers, entirely at their own expense, as required by the above-mentioned Ordinance.

3.Parental leave of the father (adoptive parent) – substantial obligations are introduced for the employer in this administrative procedure when the employee takes this leave.

New article 164c has been introduced in accordance with the latest amendments to the Labor Code of August 2022, which entitles the father (adoptive parent) to take two months of leave to care for a child until the age of 8. The current amendments to the Ordinance on Working Time, Breaks and Holidays regulate the terms and conditions for taking this leave. This type of leave shall be requested and taken in calendar days.  The Appendices introduce a template for a written declaration under Article 46g(1) and a template for a certificate under article 46g(3) of the Ordinance. New in the regulation:

– The employee shall submit a written Application-Declaration at least 10 working days before the date from which he wishes to take leave.

– The employer is obliged to grant the leave from the day specified in the application or to notify the employee in writing with a reasoned refusal within 7 days when the father (adoptive parent) is not entitled to this leave.

– The employer shall be obliged to record the leave taken under article 164c(1) of the Labor Code in a special book kept by him. 

– The employer is obliged to issue a Certificate in form when the leave is taken for the first time, and this Certificate shall be kept with the employer who granted the leave and shall be provided to the employee upon termination of the employment relationship, which shall be reflected in the special book for recording the leave under article 164c of the Labor Code kept by the employer.

– The employer is obliged to keep the documents necessary for granting the leave in the employee’s personal file.

This type of leave is provided for by the payment of an insurance benefit, and the latest amendments of 30.09.2022 in the Regulation on cash benefits and allowances from the State Social Insurance describe in detail the application procedure and provide samples of all the necessary documents for applying for this social payment.

It is the employer’s responsibility to set up a working digitized system for tracking and reporting leave under article 164c of the Labor Code, for which it will need competent legal assistance from external consultants in order to meet the set legal requirements.

Our team of attorneys, with expertise in Civil and Labor Law, can provide legal assistance to any employer regarding the implementation of the new regulatory requirements, should we be assigned this consulting service as external experts.  

           This publication should not be taken as legal advice.  The implementation of specific changes in a company according to the latest legal requirements of the Working Time, Rest and Holidays Ordinance should only be undertaken after consultation with a competent legal expert or a lawyer qualified in the subject matter. 

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