Organization of work on non-working days

WORK AT HOME__ IMPOSSIBLE __TO GO TO OFFICE

In accordance with the Russian President Decree as of 25.03.2020 the period from 30.03.2020 till 03.04.2020 was announced as nonworking days to ensure the health and epidemiological well-being of people on the territory of the Russian Federation. Currently this period is prolonged till 30.02.2020.

BLS CUSTOS GROUP, LLC has summarized the most frequently asked questions, the business is currently facing, in the field of labour regulation.

1. Is it allowed to work during the period of nonworking days?

The established period of nonworking days is not automatically equated to the period of weekends or holidays. This is only a measure aimed at additional motivation of employers and employees to stay at home for the time necessary for the government to combat the rapidly spreading new coronavirus infection.

In this respect, the normative acts were constituted by the Decrees of the President of the Russian Federation and regional authorities, which determine:

• to whom the Decree of the President of the Russian Federation does not apply (who continues to work, for example, pharmacies, grocery stores, law enforcement agencies, medical organizations, etc.);
• (2) the activity of which sector of business is partially suspended (for example, the work of courts is suspended in the part of hearing the cases with the presence of the parties in person (but hearing of the cases without participation of the parties is allowed), the work of restaurants is suspended if it is connected with a visit to the restaurant by citizens (but cooking and delivery to citizens is allowed), etc .;
• (3) there are organizations which are not listed in either first or the second list (the activity of such organizations is not forbidden and not suspended, that is why it is continued with due regard to government measures for stimulating the self-isolation of people).

In any case, employers and employees of authorities (organizations) that continue to carry out its work should be guided by the relevant methodological recommendations of the Russian Ministry of Health and Rospotrebnadzor for the prevention of new coronavirus infection.

If it is agreed with the employer, employees can work remotely if their responsibilities and organizational/technical conditions of work allow this.

Organizations that are expressly forbidden to carry out its activities during nonworking days (for example, in Moscow the work of SPA, baths, beauty salons, etc. are prohibited), nevertheless, are obliged to pay employees salaries and take measures to maintain the employment of their employees. Thus, these organizations are obliged to calculate and pay salary; they continue to negotiate and settle accounts with their suppliers, customers, and this, in turn, is the work of accountants, human resources specialists, customer service managers, etc.

Thus, some specific business activities, which supposed gathering of people, are forbidden but not the work of organizations itself.

At the same time, if the employer continues to work, then he is obliged to ensure compliance with additional mandatory measures that are established separately in each region of the Russian Federation.

For example, in Moscow the employers are obliged:

• to ensure compliance with all established requirements for the prevention of spreading of infection including the observance of social distance and disinfection, in buildings, constructions (premises in them), adjacent territories, other workplaces with the use of which the relevant activities are carried out;
• to make a decision on a number of employees which:
  - will work remotely;
  - can’t work remotely;
  - in accordance with the Decree of the President of the Russian Federation applied to regime of nonworking days with full pay.

2. How to move the employees on remote work?

The special aspects of remote work are determined by the fact that the work is performed (1) outside the employer location, outside the working place of the employee under control of the employer, (2) provided that public telecommunications networks, including the “Internet”, should be used to perform work and communicate with the employer.

The remote workers are the employees who signed the relevant remote employment agreement with the employer.

Such employment agreement and any additional agreements to it can be executed by the way of electronic documents exchange.

If the remote employment agreement is executed through the exchange of electronic documents, the employer is obliged to send the remote worker a registered copy of this employment agreement in paper form by registered mail not later than three calendar days from the date of execution of this employment agreement (article 312.2 of the Labour Code of the Russian Federation).

The order of moving the staff to remote work that will allow to minimize most of the risks:

• To execute an additional agreement to the employment agreement on amendments of specific provisions of the agreement (it is possible to determine the term of remote work – “for the period of high alert regime”);
• To issue an order about moving the employee to remote work;
• To hand out the regulation and instructions on remote work;
• To amend the provisions on commercial confidentiality and protection of information (if any);
• To make an act of acceptance of material assets the employee gains for using, составить акт о передаче ТМЦ (техники, которую сотрудник получает в пользование), to clarify to the employee the requirements to the labour protection while working with equipment’s and assets, provided by the employer;
• To amend the internal labour rules to have a provision about the remote work;
• To draw up the rules for working with means of individual identification and establish responsibility for transferring such means to the third parties if employees will be provided with remote access through electronic key identifiers;
• To write down the procedure for reimbursing employees with the costs (for example, reimbursement of expenses for mobile communications or the Internet) if an employee uses his equipment, spends money for Internet traffic;
• To establish the procedure for communication between the employee and the employer on the fulfillment of the labour functions with the indication of email, phone number.

3. Should the work during nonworking days be paid in an increased amount?

The term “nonworking day” being not a weekend or holiday is not determined in the laws of the Russian Federation. Due to this, the issue with paying salary for such days is not regulated in the terms of legislation.

However, according to the Recommendations of the Ministry of Labour of the Russian Federation dated 26.03.20, a nonworking day does not apply to weekends or non-working holidays, therefore, payment is to be made in the usual rather than in the increased amount.

In this situation, we recommend you to adhere to the explanations of the Ministry of Labour of Russia and pay salaries in the usual manner.

4. Who will be guilty if an employee working remotely is injured?

In accordance with part 2 of article 312.3 of the Labour Code of the Russian Federation an employer performs the duties provided by paragraph 17, 20, and 21 of part 2 of article 212 of the Labour Codу of the Russian Federation to ensure the safe working conditions and protection of labour for employees working remotely. More specifically, an employer should ensure:

• investigation and control of accidents at work and occupational diseases;
• accomplishment of the improvement notices of government officials authorized to monitor compliance with labour laws;
• compulsory social insurance of employees against accidents at work and occupational diseases.

In addition, the employer must clarify to remote employees with labour protection requirements when working with equipment and tools recommended or provided by the employer.

Other obligations of the employer to ensure safe conditions and labour protection established by the legislation on labour do not apply to arranging of remote work, unless otherwise provided by the remote employment agreement.

In the event that an accident occurred during remote work, then the commission must conduct an investigation to clarify all the circumstances.

The investigation should take into account all circumstances and reasons that may affect the recognition of an accident as an accident at work. An event that occurred outside of working hours (part 3 of article 227 of the Labour Code of the Russian Federation) may also be recognized as such.

Thus, not every accident that can happen to an employee working remotely will be recognized as an accident at work; everything will depend on the specific circumstances of that accident.

5. How to low the expenses on the salary fund?

In the conditions when the Government of the Russian Federation declares that it is unacceptable to dismiss the employees during the high alert regime and the period announced as nonworking days, and business has to optimize its expenses, a question of salary fund reducing becomes currently important.

In the said conditions, many employers take the path of introducing a downtime regime - temporary suspension of work for economic, technological, technical or organizational reasons, since, among other reasons, downtime can be caused by an epidemic and other exceptional cases (parts 2, 3 of article 72.2 of the Labour Code of the Russian Federation).

In the current epidemiological situation, it can be recognized that the downtime is caused by reasons independent of the employee and employer. This means that the downtime should be paid based on 2/3 of the salary or tariff rate calculated in proportion to the downtime (part 2 of article 157 of the Labour Code of the Russian Federation).

A downtime is introduced by order of the employer. At the same time, downtime can be declared both in relation to all employees of the company, and in respect of only a part of them (for example, those who cannot work remotely).

For the period of downtime, the employer can relieve employee from the obligation to come to office on their workplaces (for this, it is necessary to issue a separate order).

If manufacturing is suspended due to downtime, the territorial employment office must be notified in writing within three business days from the date of issuing the downtime order.

A justified measure can be signing of an additional agreement to the employment agreement about part-time work.

If the employee does not agree to sign such an additional agreement, the employer may establish the part-time regime unilaterally, but for this, the employer must notify the employee in writing not later than two months before (article 74 of the Labour Code of the Russian Federation).

As for leave at the expense of an employee, unpaid leave is possible only at the request of an employee (article 128 of the Labour Code of the Russian Federation).

An employer does not have the right to force employees to write vocation request at their own expense.

We will be happy to provide clarifications on your specific situations related to the regulation of labour relations during the period of the high alert regime in the Russian Federation and after the removal of this regime, we will help to prepare the necessary documents for moving employees to remote work, and we will also protect your interests in case of possible labour disputes with employees.