The free movement of workers in the EU is a valuable good, which, however, due to national solo initiatives and border closures during the COVID-19 crisis, has been put at risk. Posted workers, frontier workers and seasonal workers are feeling the consequences: In addition to restricted mobility, their social security is at stake.
With 1,5 million EU citizens, who live in one Member State and work in another, a large group of employees find themselves in an uncertain situation. “Many of them have jobs, which are important to get all of us through this crisis” said Ursula von der Leyen. To name just one example, a large part of hospital workers in Luxembourg come in from France or Belgium. Subsequent to the Commission publishing Guidelines for border management measures and temporary restriction on non-essential travel in the EU, the need for clarifications for frontier workers and posted workers continues.
Response of the Commission
The Commission responded on 30 March 2020 by publishing Guidelines concerning the exercise of the free movement of workers during COVID-19. Member States are instructed not to restrict the free movement of frontier workers and posted workers, in particular “critical sector workers”. Provided their professional activity is deemed to be essential and is still undertaken in the respective Member States, border crossings shall still be permitted. The guidelines define which employees shall be affected by this exemption. The list is diverse and includes among others healthcare workers, care workers, technical personnel, transport workers, people working in public institutions, but also workers in the fishing industry. Health screenings for frontier and posted workers must be carried out under the same conditions as for nationals exercising the same occupations. The guidelines also refer to the high dependency of some Member States on seasonal workers in the agricultural sector coming from other Member States, which is already bemoaned by several countries. In such cases, seasonal workers shall be put on an equal footing with critical workers enabling them to continue to cross borders. In addition, employers shall be required by Member States to provide these workers with adequate health and safety.
A wide range of problems for mobile workers
Frontier workers, who are able to work from home, are also negatively affected by border closures and the uncoordinated approach of individual Member States. Home office presents a challenge for the application of social provisions, which is regulated by the regulation on EU social security coordination and the Posting of workers Directive. If there are no, or notably less working hours effectuated in the country of employment, as is currently the case, and people are working in home office in the country of residence, it is necessary to clarify national competencies regarding social benefits including short-time work or paid sick leave. Besides, there is the question which State may tax the income, which has been generated by working from home. Hence, social security might “shift” to another State. In the worst case, neither country of residence nor country of employment will assume any responsibility. However, the ÖGK points out that temporary COVID-19 measures do not justify a change regarding the competence of the country and the social insurance carrier, if the intention is to resume the previous working situation once the measures have been rescinded.
Frontier workers as well as people working for private individuals in another State, for example in the care sector, are often especially hard hit by the current situation. Some do not benefit from any supporting measures or benefits, neither in the state of residence nor in the state of employment.
Current 14-day quarantine regulations for “returnees” aggravate the situation, because they also include mobile workers, for whom crossing the border is part of their daily working life. At the end of March, over 200 24-hour care workers arrived in Austria - merely a drop in the ocean in any case - who are now also in quarantine. The working conditions in the 24-hour care sector, which were already extremely precarious before the crisis, are now made even worse, for example due to the pressure of having to work non-stop without relief for months.
Demands of ETUC
Bilateral and speedily adjusted regulations between States already provided some relief and security for those affected, for example with regard to tax regulations or being paid a short-time working allowance. Nevertheless, and independent of this, it is essential – in particular given the particular vulnerable situation of mobile workers – to ensure the protection of their health, their social security and the principle of equal treatment throughout Europe. Even though the publication of the guidelines is welcome, the European Trade Union Confederation (ETUC) continues to see a need for further action and warns against undermining applicable law at the expense of workers. A coordinated approach at European level, which guarantees equal treatment of workers and their social security, continues to be a key aspect.