Labor law in quarantine conditions: experts discuss changes

The issues of changing working conditions during the quarantine period, granting unpaid leave to the employee, dismissal during quarantine – these and other issues were discussed during an online seminar on “Labor nuances during quarantine: to dot the “I’s” and cross the “T’s.”. Part 1 “, which took place on April 24. The event was organized by experts of Law offices of OMP together with MORION and UKRKOMEXPO. Speakers at the seminar were Natalia Mozgova, Senior associate in Law offices of OMP, and Igor Ogorodniychuk, Partner of Law offices of OMP.

Natalia Mozgova acquainted the participants with the main changes in the legislation on the adaptation of work in quarantine.

As soon as the issue of quarantine implementation throughout Ukraine became obvious, another question immediately arose – “How to organize work?”. The most obvious option was to use all types of leave provided by current legislation:

• annual main and additional paid leave (Article 4 of the Law of Ukraine “On Leave”);
• leave due to family circumstances and for other reasons without saving wages for a period determined by agreement of the parties (Article 26 of the Law of Ukraine “On Leave”);
• other types of unpaid leave, which are provided at the request of the employee in a mandatory manner (Article 25 of the Law of Ukraine “On Leave”).

However, not all employees will agree to be on leave for a long time, so it is possible to use the following methods of work organization: establishing a part-time job, flexible hours, introduction of distance work, downtime.

Distance work, or work from home, has become the most widely used method of organizing work during quarantine. But there are problems and increased risks for the employer to monitor the implementation of tasks or instructions given to the employee. Even before the introduction of quarantine, there was a practice of developing separate local policies on distance work, which defined:

• the name of positions/categories of employees who (do not) have the opportunity to exercise the right to distance work;
• the procedure for requesting and approving the possibility of the employee’s work at home by the employer;
• normal/maximum duration of such work;
• procedure and cases of interruption/deprivation of the right to work at home;
• the procedure for extending the company’s regulations to the employee during remote work;
• the procedure for working with the company’s property, liability for loss, destruction of equipment, etc .;
• types of violations that are the basis for bringing an employee to disciplinary responsibility, etc .;
• the procedure for protection of confidential information, commercial secrets during distance work (setting more stringent requirements), if this issue is not sufficiently regulated by a local act in the field of information protection, etc.

In order to minimize the risks of non-performance or lower quality performance of the employee`s obligations in quarantine, it is necessary:

1. To more clearly detail the responsibilities of the employee in the main documents (employment contract, job description of local policies, etc.) – the transition from abstract wording to specific quantitative and qualitative indicators.
2. Define the control procedure and actually strengthen the control (reporting on the work done periodically during the day or at the end of the working day, identifying ways to maintain communication, etc.).

Another issue in remote work is the settlement of non-disclosure of confidential information to third parties. To reduce risks, employers are encouraged to establish a clear list of information that is considered confidential. The best option is to develop, approve and familiarize employees with the local Privacy Policy.

Another category of increased risk for the employer is the risk of loss or damage of property. To reduce the risk in this case, it is necessary to detail the responsibilities for the preservation of the company’s assets in the company’s internal documents. As for liability, it remains standard and is generally limited to one average salary. Experts recommend making sure that full liability agreements have been concluded with those categories of employees who are legally liable.

The question of the legitimacy of sending employees on leave at their own expense during the downtime of the company is specific today. For example, theoretically the downtime can be declared only for a few departments of the company. The rest of the departments can work remotely, and employees will formally have the right to receive leave at their own expense.

The main risk that arises is the denial of voluntary application for leave at one’s own expense. In this case, the employee may later try to prove that the application for leave at his own expense was compulsory and constituted a violation of the minimum wage guarantees.

It should be noted that during the downtime the employee retains the scope of its guarantees, including in terms of wages. The downtime of the company during the quarantine period is paid at the rate of not less than two thirds of the tariff rate set for the employee category (salary) (according to the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine aimed at providing additional social and economic guarantees with the spread of coronavirus disease (COVID-19)” dated 30.03.2020 № 540-IX (hereinafter – the Law № 540 ‑ IX). As for the provision of basic annual paid leave during quarantine, the company is obliged to provide leave if it is provided for on these days in the approved schedule of leave, or if the employee belongs to the category of persons to whom annual leave is granted at a time convenient to them. In all other cases, the company has the right to decide this issue at its discretion.

The main changes made to the Labor Code (Labor Code) by the mentioned Law № 540 ‑ IX concerned:

1. Article 24 of the Labor Code, which was expanded in cases where it is mandatory to comply with the written form of employment contract, namely when concluding an employment contract for distance (work from home) work. At the same time, at the time of the threat of the epidemic, the condition of distance work and flexible working hours may be established by order without the mandatory conclusion of a written employment contract for remote work.
2. Article 60 of the Labor Code: the concept of distance work is defined – it is a form of labor organization when work is performed by an employee at his place of residence or elsewhere of his choice, including information and communication technologies, but outside the employer’s premises. During distance work employees define their working hours at their discretion, they are not subject to the rules of internal labor regulations, unless otherwise provided in the employment contract, and the total duration of working hours may not exceed the norms provided by law.

Igor Ogorodniychuk, a partner in the law offices of OMP, spoke about the change in working conditions during quarantine. Current legislation allows changes in working conditions, but requires notification of the employee 2 months before the date of such change. If there is a radical change of responsibilities, it is impossible and will be considered a violation without prior notice, the employee has the right not to perform new duties, and the company will not be able to impose sanctions. Art. 29 of the Labor Code provides for the need to notify the employee providing their signature on working conditions when hiring, respectively, when changing working conditions should apply the same procedure.

If the procedure is not followed, the penalties for not familiarizing employees are theoretical and minimal – one minimum wage for the company + 510-1700 UAH per official. Accordingly, the main risk is the employee’s appeal of the fact that he was not aware of the new working conditions and he was not acquainted with them personally. In this case, reliable ways to notify the employee are: personal signature on the acquaintance (via courier or mail is also allowed); or the use of a qualified electronic signature (QES). Law of Ukraine “On electronic trust services” namely Art. 18, notes that the CEP has the same force as a handwritten signature.

E-mail as a way to inform the employee about changes in working conditions is risky, so at least you should keep all the technical confirmation of receipt of the letter. With regard to the issue of performance of work outside Ukraine, it is possible that there is no direct prohibition in the legislation, but there are still problems:

• registration of Ukrainian-style sick leaves;
• lack of possibility to send employee books by mail for international correspondence;
• the employee becomes a tax resident of another country.

In addition, the speaker spoke about another problem – a non-standard working day, i.e. performance during non-standard working hours without additional payment. Compensation for such work is provided in the form of additional leave, namely from 1 to 7 working days. Other compensations for unregulated work more than the norm are not provided by law. However, there are restrictions on the establishment of non-standard working hours for employees, namely:

• impossibility of systematic involvement in work beyond the established length of the working day;
• inability to get involved in work on weekends and holidays. In this case, compensation should be made by providing other days off or double pay as a general rule.

If, however, changes in working conditions do not help, and the company sees a way out of the situation in the reduction of staff, in general, the option to reduce staff remains legitimate today. As for other grounds, the Cabinet of Ministers Resolution of 25.03.2020 № 256 recommends not to dismiss employees who work from home, as well as those who are on leave without pay, on the following grounds:

• systematic non-performance of duties (dismissal on the basis of several reprimands within a year);
• absenteeism for more than 4 months due to temporary incapacity.

For the rest of the grounds, dismissal is standard. The main requirement is that it must be properly executed, justified and not based solely on the introduction of quarantine.

According to the weekly magazine Apteka