Employment Relations of Medical Personnel During the State of Emergency

Who is obliged to provide medical equipment? Can medical personnel refuse to provide health care? Is the resignation of medical personnel allowed during the pandemic period? These are the questions increasingly discussed during the pandemic.

The short answers to these questions would be:

• public health unit
• no, with some exceptions
• yes, with some observations

The public’s interest in these subjects is natural given the COVID-19 pandemic, as well as the fact that on 12 April 2020, 812 cases of infection with SARS-CoV-2 virus of the medical personnel were reported in Romania and several medical personnel submitted their resignations. One of the main causes of infection with the new SARS-CoV-2 virus within medical personnel is the lack of appropriate personal protection equipment.

Therefore, the natural questions that arise in this situation and which we will address are:

• what are the legal implications of the SARS-CoV-2 virus infection of the medical personnel?
• can medical personnel refuse to provide healthcare?
• can medical personnel resign during the state of emergency?

COVID – 19 – professional disease?

Most qualified doctors and all resident doctors carry out medical activities in the public health system and/or in the private system under an employment agreement[1]. This implies that, in their case, the provisions of the Labour Code and Law No. 319/2006 on occupational safety and health are applicable.

According to the Labour Code, the employee (in this case the medical personnel) is entitled to safety and health at work. Collaterally, the employer (in this case, the public health unit employing medical and health care personnel) is obliged to ensure the health of employees under all aspects related to the provided activities, including the obligation to ensure all employees in case of accidents at work and professional diseases[2].

One of the ways in which the employer fulfils this obligation is to provide individual protection equipment[3] and new personal protection equipment in the event of degradation or loss of protection
qualities. This obligation of health units is also stipulated in the Collective Labour Agreement[4], which establishes that protection equipment is provided compulsory by the employer in the quantity and quality necessary to ensure adequate healthcare. For example, the rule related to the equipping of SMURD staff[5] expressly establishes that items of special protection equipment are provided free of charge by the employer[6].

Moreover, to consider that the obligation of public health units has been fulfilled, the equipment must be suitable for the work particularly performed by medical personnel.

By the Order of the Ministry of Health No. 555/2020[7] the recommendations have been established for the use of personal protection equipment in the context of the COVID-19 pandemic, depending on the ward, type of personnel and type of activity. For example, the equipment of medical personnel performing aerosol-generating procedures for COVID-19 patients consists of standard or equivalent N95 or FFP2 mask, single-use robe over which apron/combination is placed, gloves, eye protection. Failure by the employer to observe this obligation may lead to an accident resulting in death or injury to the body of the employee who may take the form of a professional disease or accident at
work.

Professional disease means: the condition that occurs because of the exercise of a job or profession, caused by physical chemical or biological harmful agents characteristic of the workplace, as well as by the overuse of various organs or systems of the body, in the process of work (s.n.). Infection of a healthcare professional with SARS-CoV-2 virus in the workplace is a case of professional disease[8], which attracts the incidence of specific legal provisions.

As the employer is liable for damage caused to victims of accidents at work or professional diseases, to the extent to which the damage is not fully covered by the state social security benefits, the infection of a medical personnel with the SARS-CoV-2 virus as a result of the provision of professional activity under improper conditions (e.g. without adequate personal protection equipment), entails the pecuniary liability of the public health unit for damage caused by professional disease (e.g. hospital expenses, compensation for temporary incapacity for work, covering the costs of treatment).

Can medical personnel refuse to provide healthcare?

Another issue addressed during this period is whether medical personnel can or cannot refuse to provide healthcare.

According to the legal provisions[9], the doctor or nurse is obliged to provide medical care/healthcare to a person if they have accepted them as a patient in advance. The doctor, nurse/midwife, employees of an institution providing medical services, are obliged to provide medical assistance to the patient who has the right to receive medical assistance within the institution, in accordance with the legal regulations.

The relationship between the patient and the doctor can be interrupted only in the following situations:

1. the moment the disease is cured;
2. by the patient;
3. by the doctor in the following situations:
   • when the patient is sent to another doctor, providing all the medical data obtained, which justifies the assistance of another doctor with increased competence;
   • the patient manifests a hostile and/or irreverent attitude towards the

Therefore, the doctor or nurse cannot refuse to provide medical care to patients suspected or infected with the SARS-CoV-2 virus on the grounds that there is a risk of infection.

The obligation to provide medical assistance was also reiterated in Article 4 of the Order of the Ministry of Health No. 555/2020, according to which: all health units in the public and private systems are obliged to provide medical care to all patients […]. Refusal to provide medical care may result in the liability of medical personnel on three levels:

• disciplinary liability pursuant to Article 450 of Law No. 95/2006;
• civil liability for damage arising from non-compliance with the obligation to provide healthcare, pursuant to Article 653 para. (3) of Law No 95/2006;
• criminal liability, with respect to this type of liability, we note that we have not identified a special offence with such a material element. However, we cannot rule out that certain facts may be classified as abuse or negligence at work.

However, medical personnel are not held liable for harm caused to patients in the exercise of the profession when they are due to working conditions, insufficient equipment for diagnosis and treatment, nosocomial infections, side effects, complications and generally accepted risks of the methods.

Therefore, although medical personnel cannot refuse to provide medical care on the grounds that there is a risk of infection, they are not responsible for harm or prejudice caused to patients due to working conditions, insufficient equipment or nosocomial infections (e.g. SARS-CoV-2 virus).

Can medical personnel resign during a state of emergency?

Resignation is a unilateral act of will of the employee (in the given case of the doctor/medical assistant) who, by written notification, communicates to the employer (medical unit) the termination of the individual labour agreement after the expiry of a period of notice.

Does the medical unit have the right to refuse resignation? No, according to the provisions of the Labour Code[10] and the Collective Labour Agreement[11] the employer is obliged to register the resignation. The employer’s refusal to register the resignation entitles the employee to prove it by any means of proof.

Moreover, the employee may resign without prior notice in accordance with Article 81 para. (8) of the Labour Code if the employer fails to fulfil the obligations under the individual labour agreement, or as I have outlined above, one of the obligations of the employer is to ensure safety and health at work.

However, the right of medical personnel to resign without prior notice pursuant to Article 81 (1) para. (8) of the Labour Code was substantially affected/censored by the Decree of the President of Romania No. 240/2020 on the extension of the state of emergency in Romania. 

 The decree stipulates that art. 81 para. (8) of the Labour Code, which regulates the employee’s right to resign without notice if the employer does not comply with its obligations under the individual labour agreement, does not apply, inter alia, to staff in health or social care units during the state of emergency. Moreover, Decree No. 240/2020 also brings changes on the manner of running of the notice period, in case of resignations already submitted. Therefore, since the entry into force of Decree no. 240/2020 (15 April 2020), the notice periods do not start to run, and if they have started to run, they are suspended for the entire duration of the state of emergency.

Is this a measure that does not affect the very substance of the right to resign as the preamble of Decree no. 240/2020 claims that would not do?

We believe that the answer is a negative one especially in cases where employers – hospitals – cannot provide the necessary means of protection of medical personnel. In particular, the individual labour agreement for the medical personnel who submitted their resignation and who were on notice at the time of the entry into force of Decree no. 240/2020 will cease only after the end of the state of emergency and the fulfilment of the suspended notice period.

In view of the principle of non-retroactivity of the law, Decree No. 240/2020 will not have any effect on individual labour agreements which have ceased because of the resignation of medical personnel and for which (i) there has been no notice period (according to Article 81 para. (8) of the Labour Code) or (ii) the notice period shall be reached at the time of entry into force of Decree No. 240/2020. Therefore, from the moment of entry into force of Decree no. 240/2020, the medical personnel may resign, the notice period being suspended during the state of emergency, and the effects of the resignation, namely, the termination of the labour agreement, shall take place only after the end of the state of emergency and the fulfilment of the suspended notice.

Notes:

[1] Art. 386 para. (3) and (4) of Law No 95/2006 on health reform

[2] Article 179 of the Labour Code

[3] Article 13 lit. r) of Law 319/2006 on health and safety at work

[4] Art. 85 of the Collective Labour Agreement at the Health Sector Level for the years 2019-2021, registered at the M.M.J.S.-D.D.S. under no. 1206 dated 4.11.2019 („Collective Labour Agreement“)

[5] The norm regarding the equipment of the medical, paramedical and civil personnel within the mobile emergency, resuscitation and release services, as well as the rules for their application from 19.12.2008

[6] Art. 3 of the Norm regarding the equipment of the medical, paramedical and civil personnel within the mobile emergency, resuscitation and release services, as well as the rules for their application from 19.12.2008

[7] Order no. 555/2020 on the approval of the Plan of measures for the preparation of hospitals in the context of the coronavirus epidemic COVID-19, of the List of hospitals providing healthcare to patients tested positive for SARS-CoV-2 virus in phase I and phase II and the List with support hospitals for patients tested positive or suspected of having the SARS-CoV-2 virus

[8] See Annex no. 22 to the Methodological Norm for the application of the provisions of the Law on safety and health at work no. 319/2006 of 11 January 2006 in conjunction with the provisions of Directive 2000/54/EC

[9] Art. 663 of Law 95/2006 on healthcare reform

[10] Article 81 para. (2) of the Labour Code

[11] Article 64 para. (2) of the Collective Labour Agreement