Recent amendments to the Lithuanian Labour Code (LC) have considerably broadened the range of employees whose requests for teleworking must be granted. As teleworking becomes a daily routine for employers and employees, inevitably, new issues arise. A highly topical issue is the recording of disciplinary violations and the suspension of employees. Suspension is relatively straightforward when the employee is working in the office, but when working remotely, it presents a number of challenges. 

What does suspension mean? Suspension is the temporary suspension of an employment contract, when an employee is prevented from performing his or her agreed job functions. 

An employee is normally suspended for the following reasons: 

• at the written request of officials or official bodies; 
• while investigating the circumstances of possible misconduct; 

• when an employee shows up for work under the influence of alcohol or narcotic, psychotropic or toxic substances. 

The last ground is probably the most difficult to apply. 

The fundamental problem with the last ground for suspension is determining whether an employee is intoxicated. The usual signs of drunkenness, such as inappropriate behaviour and slurred speech, are particularly difficult to spot when working remotely. And the identification of some signs, for example, the odour of alcohol on an employee’s breath, is impossible. 

To suspend the employee on this ground, the employer or other staff members must clearly observe uncoordinated or inappropriate behaviour or other signs indicating that the person is intoxicated. Only then can the employer take other steps to determine whether the employee is actually under the influence. 

It is therefore recommended that employers set up an internal procedure for organising a drunkenness check for remote working employees.  

Employers can stipulate that in the event of a suspicion of drunkenness, the employer has the right to arrive at the employee’s designated teleworking location for a check, or that the employee must present himself/herself at the workplace or a healthcare institution for a check.  

‘Workcation’ is the same as teleworking, but with scope to travel and usually with a more flexible working schedule. Of course, while workcation is a motivational and efficiency-enhancing tool, it can also create additional problems for employers. During vacations, employees relax more, so cases of drunkenness or other intoxication may also occur. 

When granting workcation, it is important to determine when the employee must be available, where s/he should be checked if suspected of being intoxicated, as well as how the employee can be suspended if s/he is working in another country. 

At the written request of officials or official bodies, an employee can be suspended from work in writing for a period of up to three months, without pay. The employer must specify the period, reasons and the legal basis for the suspension. 

On the other hand, suspension of an employee when there are concerns about his or her misconduct can only be done when misconduct is suspected and if it is established that the employee’s presence at the workplace is likely to interfere with the investigation. If the employee in question is working remotely, being ‘in the workplace’ could be interpreted as continuing to carry out job functions or being connected to a work system. 

The employer’s notification of its decision to suspend an employee from work must specify the alleged breach of his or her duties and the reasoned justification for the allegation. The employee is suspended for a period of up to 30 calendar days, with his or her average salary retained. It is recommended that this decision be communicated to the employee in writing and that a written explanation be requested.  

If an employee is found to be intoxicated, the process remains the same as when working in the office: the employee is issued with a suspension notice, which is presented to him or her. The employee must sign it to agree or disagree to the suspension.  

It is also recommended that the employee be instructed to provide a written explanation of the circumstances surrounding his or her drunkenness or other intoxication. The employee is suspended immediately on that working day, without pay. 

However, in cases where the employee works remotely, it is important to know the specific aspects which, if not taken into account, can considerably complicate a relatively simple suspension procedure.  

• As a first step, we recommend establishing an internal procedure that clearly sets out how irregularities in teleworking are recorded and what the specific procedure for suspension is. This is important for the employer, as without proper definition of these aspects it may be difficult to suspend the employee or, in the event of drunkenness, to carry out the necessary checks. 
• It is important to determine whether the suspension acts and decisions are served on the employee electronically or by other means. According to the amendments to the LC, the employee must be able not only to save, but also print out information transmitted electronically. For example, a document forwarded by email, which can be downloaded, and which clearly sets out information that can be printed by the employee, is deemed to have been properly served.  
• As regards proper service, it is important to have an action plan in the company’s internal procedure defining what to do if an employee, for example, does not reply to an email. 
• To prevent the employee from deleting or simply ignoring the letter, it is advisable to, first, set a deadline for the employee to acknowledge receipt and to familiarise him or herself with the letter. Second, there should be a procedure on how the employer can deal with the employee’s failure to reply within a specified deadline. For example, there could be a provision that if the employee does not reply to an email within a set deadline, the employer has the right to call the employee, verbally inform him or her about the document and discuss its content. In this case, the document will be deemed to have been duly served. 
• Another extremely important factor is ensuring that the employee does not perform his or her job functions during the period of suspension. In an office, this is very easy to do: taking away the employee’s working tools, preventing him or her from being present at the workplace, etc. However, the internal procedure must also provide for how a teleworker will be prevented from working during suspension. It must be possible, for example, to disconnect the employee from the workplace system, deny access to shared documents, block the employee’s email and other accounts, and lock the computer. This may prove difficult if the employee is using his or her own devices, such as a personal computer. The Employer could block access to workplace servers or systems, but as the computer is private, the employer would not be able to deny access to all applications. The risks need to be assessed and ideally, a separate work computer should be provided for home working to avoid similar situations.  

While suspending a teleworker is certainly feasible, it is up to each employer to assess whether the organisation‘s suspension procedure is appropriate for this form of work. The best way is to have an internal procedure that minimises inconvenience and risk of disputes and makes it easier for the employer to deal with any misconduct that could constitute grounds for suspension. 

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