New year, major employment changes

At a glance

• The end of 2022 has brought many legislative changes which will have a significant impact on Romanian employment law.
• Changes have been made in areas such as employment documentation and employee relations, including the update of the individual employment agreement statutory template, new / updated statutory content for the internal regulation and new rules on social dialogue.
• A significant development also includes the new law on whistleblowing. Below is a summary of the key changes for 2023.

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The key changes for 2023 include

New statutory individual employment agreement template

Following-up on our news alert regarding the changes to the Labour Code, on 9 December 2022, the new statutory individual employment agreement template was issued by the Ministry of Labour. While the changes are not necessarily significant compared to the former statutory template, there are some new elements which should be considered.

Next steps: employers should align their former template to the new template and consider also updating the employment agreements of existing employees to reflect the new statutory content.

New law on Whistleblower Protection

On 22 December 2022, Law No. 361/2022 on the protection of whistleblowers in a public interest (RoWP) entered into force. The new law aims to implement the EU Directive 2019/1937 on the protection of persons who report breaches of Union law. 

The RoWP is now the general framework for the protection of reporting persons from the private sector (not just public sector), who possess information (including reasonable suspicions) on breaches of the law (not just Union law) which are likely to occur or have occurred in a work-related context.

In brief, the RoWP sets express rules on: 

• Procedures / processes: how to submit, register, examine and resolve reports, what reporting channels (internal, external, public) can be used and if & how internal reporting must be implemented;
• Rights and obligations of the designated persons to handle reports and the protection measures regarding reporting persons;
• Role and responsibilities of competent authorities, public institutions and private companies.

The corresponding obligations should be specifically analysed on a case by case basis for every company, considering (i) the company headcount, (ii) sector of activity and (iii) the pre-existence of internal reporting channels. 

Next steps: look out for further / secondary legislation and guidance which are expected to be released.

New law on social dialogue

On 25 December 2022, a new law (Law No. 367/2022) on social dialogue (Social Dialogue Law) entered into force, completely replacing the former social dialogue Law No. 62/2011. This new Social Dialogue Law brings significant changes, such as:

• Changed employees’ representatives election process: there has been an implementation of a much clearer, more detailed and bureaucratic process for the election of employees’ representatives. Employees are also now required to create an initiative group that must draft a procedure for carrying out the election process.
• Enhanced Information & consultation and presence in corporate management bodies: the new rules have restated / extended employer obligations on information and consultation, including on the potential developments in the company’s activity and economic situation (on an annual basis).
• Empowerment of trade unions: there are new rules on trade unions such as a reduced threshold for the set-up of a trade union. Under the new rules, it is required to have 10 employees in the same employer (as opposed to 15 employees as set out under the old law) and there is a lower threshold for a trade union to be considered representative. Under the new rules it requires 35% of the total headcount (as opposed to 50%+1 under the old law), creating, in theory, the possibility of 2 representative trade unions co-existing in the same entity.
• New rules on collective bargaining: for example:
  • initiation of the collective negotiation process is now mandatory at both sector and company level;
  • the threshold for initiating the collective negotiation process at company level is reduced from 21 employees to 10 employees;
  • the collective negotiation process was changed (in terms of relevant social partner, duration, information to be provided to the employees’ body, etc.);
  • the possibility of having a collective labour agreement at national level is reintroduced (applicability being generally limited to the company’s part of the employer organisation that negotiated the agreement, with the possibility of extending the applicability nationwide based on Government decision), etc.
• Changes on labour disputes: the provisions on labour disputes are amended, including the removal of references to individual labour disputes and regulation of a strike committee, etc.

Next steps: subsequent amendments to the Labour Code, as well as any related legislation, that are contrary to the Social Dialogue Law, are expected within 60 days from the date of publication of the Social Dialogue Law in the Official Gazette of Romania (i.e. around the end of February 2023).

Updates to different types of leaves

Childcare (parental) leave

On 7 December 2022, some changes to parental leave have entered into force. However, the changes depend on secondary legislation detailing / explaining how these should apply, which are still to be released. 

The changes to parental leave mainly refer to:

• The calculation method of the parental leave indemnity which is granted in the case of multiple pregnancies;
• Increase of the minimum period of parental leave for the parent/ adopter, who has not initially requested parental leave, from one month to two months;
• The employees’ obligation to inform the employer about their intention to benefit of parental leave at least 10 days before the end of the maternity leave or the start date of the parental leave;
• The employer’s obligation to approve the parental leave request, no longer being agreed by the parties.

Carers’ leave

On 22 December 2022, the awaited subsequent legislation on carers’ leave  entered into force, which:

• Defines the concept of "severe medical issues" for which this type of leave can be granted, and includes the list of medical conditions which qualify as "severe medical issues"; and
• Expressly provides that in 30 working days from requesting such leave, the employee must submit to the employer specific documents proving that (a) the person the employee took care of is a relative or an individual living in the same household with the employee, and (b) the existence of the severe medical issues (the law also specifies which are these documents).

Paternity leave

On 4 January 2023, clarifications made to paternity leave entered into force. For example, it was made clear that the entitlement to the additional 5 days of paternity leave (in case of employees who have completed a childcare course) is granted not only for each newborn child in single pregnancies, but (more recently) also for each newborn child in the case of multiple pregnancies.

Next steps: practical implications when employees ask for these leaves should be considered and – potentially – updates to the internal regulation / policies regulating these leaves.

Use of display screen equipment / employer obligations:

In a ruling of the European Court of Justice on 22 December 2022 in case C 392/21 (TJ v. Inspectoratul General pentru Imigrări) – issued in relation to Romania, the Court provided clarifications on the employer obligations towards employees working in front of display screen equipment. Such employees must be provided by their employers with ‘special corrective appliances’ appropriate for the work performed, based on the relevant medical examinations confirming that (a) these are necessary and (b) normal corrective devices cannot be used.

The Court clarified that (i) special corrective appliances include spectacles (aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment), but not limited to those used exclusively for professional purposes, and (ii) the employer’s obligation, to provide the workers concerned with a special corrective appliance, may be met either (a) directly by providing the employee with the appliance or (b) indirectly by reimbursing the necessary expenses incurred by the employee.

Next steps: these clarifications should be considered when employees ask for special corrective appliances (such as spectacles), also with health and safety and occupational physician input.

What next?

Next steps will vary depending on the circumstances of each company.

As a general approach, these major changes could be seen by employers as an opportunity to start reviewing their internal employment documentation, primarily the individual employment agreement template and the internal regulation, not only for aligning with the new legal requirements, but also for improving them based on best practice and experience.

Moreover, an assessment of the standing from a social dialogue perspective, both at company and sector level, is also recommended to be prepared for any upcoming related initiatives.