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Legal aspects of remote working

Legal aspects of remote working

NEWS \ 24.03.2020

To prevent the spread of the coronavirus many employers are, fully or partially, transferring their employees to a pattern of remote working. We have prepared this guide in line with the commentary (dated 23 March 2020) of the Russian Ministry of Labour (the “Labour Ministry”), on how, in terms of compliance with legislation, you need to adapt to the new reality and appropriately transfer your company’s staff to remote working.

Transfer to remote working

You cannot transfer an employee to remote working (even temporarily) under an order or instruction of the employer alone. It should be noted that preventive measures that have been introduced at a regional level to combat the spread of the coronavirus do not change the established procedure and prohibit a unilateral transfer of employees. Therefore, any transfer of employees to remote working requires supplemental agreements to be signed to reflect changes in the provisions of employment agreements under article 72 of the Russian Labour Code (the “Labour Code”).

What should be included in an agreement for remote working?

  1. To enshrine a new provision regarding the remote nature of the work to be performed.
  2. To specify that a job function is being performed not at the company’s office, but at the place of residence or stay of the employee in question (the Russian Finance Ministry’s Letter No. 03-03-06/1/30978 dated 1 August 2013).
  3. To outline the procedure for providing an employee with all necessary means for him/her to perform his/her job functions.
  4. To define the conditions of electronic document flow between an employee and employer, as well as between other employees of the company.
  5. To describe how and when reports should be submitted regarding the work performed.
  6. To specify the amount and deadlines for compensation to be paid for using personal property to perform work (equipment, software and information protection tools) and other expenses (such as paying for an internet connection). If the company provides corporate valuables (laptop, work phone) to the employee, sign acceptance acts.

You can also state the reasons why the above amendments are being introduced to the contract or agreement. These will include, in the case at hand, preventing the spread of the coronavirus.

Please note that an employment contract (or an agreement) can be signed remotely. To this end an enhanced encrypted and certified digital signature will be needed. The relevant procedure for documenting matters is set out in Chapter 49.1 of the Labour Code.

In connection with recent events, discussions have been resumed over the need to introduce a new type of employment and enshrine a definition of “temporary remote work” in legislation. At present, this matter is under discussion at the level of the Russian trilateral commission.

What else should be done to arrange remote working?

If the employer is not able to draw up an additional agreement on remote working with the employee, then they have an alternative (more risky, but less time-consuming) – to draw up an order for the introduction of a remote working regime. To transfer employees to remote working, an employer should:

1.         Determine lists of employees who are to be transferred to remote working and determine the procedure of how such work should be arranged. This procedure involves a work schedule, methods for exchanging information regarding job assignments and the performance of such assignments, and the ability to use the company’s resources at home.

2.         Issue an order for the transfer of employees to remote working at home (for the period of measures aimed at combating the spread of the new coronavirus (2019-nCoV)) and bring such order to the notice of employees. This order should reflect a clear procedure for interacting with an employee, who is working remotely. The transfer should be effected taking account of production capacities; in other words, it is important to make sure that your employee has the resources to perform such work, or you can provide your employee with the necessary equipment/materials.

What should be done about sick leave?

In accordance with Resolution No. 7 of the Russian Chief Medical Officer dated 18 March 2020, all persons arriving from abroad must isolate themselves at home or in a hospital for a period of fourteen days. In such cases, the employee should take sick leave in connection with the quarantine. This can be done remotely by having an electronic version of the sick leave certificate issued: an application on the official website of the Social Security Fund and a photo of the documents confirming the departure abroad are sufficient for this purpose. The application can be filed in your name and in the name of persons who live and work together with you.

The Labour Ministry specifies that such sick leave will be paid in instalments: the first payment will be made after five business (seven calendar) days from the start of the sick leave and the second instalment will be made after the sick leave has been completed.

What should be done with respect to employees who cannot work remotely?

The Labour Code contains the concept of “downtime”, which means a temporary suspension of work for economic, technological, technical or organizational reasons (article 72.2(3) of the Labour Code). Such reasons include unforeseen or unsurmountable circumstances. Therefore, such a circumstance may include situation with a pandemic and a complicated epidemiological situation.

If forced downtime occurred other than through the fault of an employee or employer, it should be paid in an amount not less than 2/3 of the tariff rate or wage rate calculated in proportion to the period of such downtime.

Please note that the week from March 30 to April 3 cannot be considered as downtime as in connection with the Presidential Decree “On the announcement of non-working days in the Russian Federation. Non-working days are established for this period with full salaries retained by employees.

Please contact Acsour’s specialists with regard to all issues you may face in connection with the transfer to remote working.