Изменения в трудовом законодательстве во время карантина

On 30 March 2020, Parliament enacted a new law: ‘On Amendments to Certain Legislative Acts of Ukraine to Provide Additional Social and Economic Safeguards in Ukraine during the Spread of Coronavirus (COVID-19)’ (Coronavirus Social and Economic Law).

This law extends and amends measures introduced by the Coronavirus Prevention Law of 17 March 2020. The new law provides measures to support Ukraine’s population and businesses suffering from interruption of trade caused by the outbreak of COVID-19. It includes, inter alia, significant amendments to Ukrainian labour legislation.

Key Issues:

  • New COVID-19 Emergency Legislation
  • New Workforce Management Options
  • Employment in Ukraine

Amendments to the Labour Code of Ukraine (the Code):

— the rule that an employee must comply with the Internal Labour Rules has been removed from the definition of an employment agreement (Article 21 of the Code).

This is a significant amendment. Since in Ukraine an employment agreement is often concluded in a very brief (“oral”) form – by an application from an employee and an order from an employer – the Internal Labour Rules are one of the main documents regulating the rights and obligations of the employee (the other being the Job Description).

— the employer must conclude an employment agreement with a remote employee in a written form.

This is a direct result of the termination of the Internal Labour Rules, and requires the employer to provide case-specific rules of work for the remote employee.

Exception: if the employer introduces flexible working hours or remote working during an epidemic, pandemic and (or) military, natural or other threat, a simple order from the employer is sufficient to do this, i.e. no written employment agreement is required (new wording of Article 24 of the Code).

The exception is significant, as it allows the employer to unilaterally change “essential working conditions” such as the place of work or working hours.

Unilateral amendment of “essential working conditions” is normally prohibited under Ukrainian labour law, and only possible with the consent of an employee or following a lengthy and heavily formalized procedure (for more details, see our recent article “Managing your workforce in times of business restriction and economic downturn: Legal aspects”).

— times of government-imposed quarantine have been qualified as a cause for downtime – downtime is defined as any time where an employee is not able to perform their duties due to reasons beyond their control. An employer has to pay wages to the amount of two thirds of the employee’s ordinary base salary during downtime (new wording of Article 113 of the Code).

— deadlines for filing employment claims to the courts have been extended for the period of the quarantine.

While the courts in Ukraine have not been officially closed, in practice the operations of most of them have been suspended during the last two weeks. It is also clear that during the quarantine claim preparation may be more difficult and time-consuming than usual. The amendment frees potential litigants from the pressure of time limitations they would otherwise have faced.

New Workforce Management Options

The Coronavirus Social and Economic Law implements completely new working arrangements.

  • Flexible working hours (Article 60 of the Code)

By an agreement between an employee and employer flexible working hours may be established for a fixed term or indefinitely, both at the moment of concluding of an employment agreement and subsequently.

During an epidemic, pandemic and (or) the threat of military, technogenic, natural or other disaster, flexible working hours may be imposed by an order from the employer without the signing of a new labour agreement with an employee.

Comment: this is another option for an employer to change the terms of employment. These changes are significant, as they allow an employer to unilaterally change “essential working conditions”.

Flexible working hours are a form of work organisation that establish a mode of work that is different from the one defined by the Internal Labour Rules, provided that an employee complies with the daily (or other period) standard of working time.

Flexible working hours may include:

  1. a fixed time during which the employee must be present at the workplace and perform his/her duties; this may include splitting the working day into parts;
  2. variable time during which the employee, at his/her own discretion, determines the periods of work to meet an established standard of working hours;
  3. break time for rest and food.

The implementation of flexible working hours does not entail changes in remuneration and does not affect the labour rights of employees.

  • Remote working hours

The Coronavirus Social and Economic Law introduces a definition of remote (home) work, previously available only in outdated secondary legislation

Remote (home) working hours are a form of work organisation which apply when work is undertaken by an employee at his/her place of residence or at any other place of his/her choice outside the employer’s premises with the assistance of information and communication technologies (Article 60 of the Code).

In the case of remote (home) work, employees allocate working time at their discretion; they are not subject to Internal Labour Rules unless otherwise stipulated in the employment agreement.

Performing remote (home) work does not entail any restrictions on the scope of employees’ labour rights and remuneration.

New measures to boost employment

The new law establishes a number of rules aimed at bolstering and simplifying current support measures for employees who have been laid off or otherwise lost employment due to the quarantine measures imposed by the government.

In particular, it is now possible to claim partial unemployment assistance in the case of loss of part of the employee’s wages as a result of the forced reduction of the working hours (new wording of Article 47-1 in the Law of Ukraine On Employment of the Population).

The Law empowers an employer to request partial unemployment assistance from local authorities and receive funds to distribute to employees. Such a measure encourages employers not to dismiss their workforce during the quarantine imposed in Ukraine.

Conclusion

The emergency amendments to the labour laws of Ukraine provide significant changes to the law, in particular allowing companies to change essential working conditions and providing much-needed definitions of flexible working hours and remote work formats.

However, even the relaxed labour law regulation still provides many protections for employees. Accordingly, all emergency measures must be implemented with due regard for the procedures established by law. It is also important to restore the pre-quarantine organization of labour immediately after the cancellation of quarantine measures.

Social security mechanisms have been amended to assist both employers and employees to provide a less painful procedure and consequences of laying off personnel. To this end, the new law even enables partial unemployment payments.