The quarantine which followed the spread of the COVID-19 in Ukraine has fundamentally changed conditions for doing business in Ukraine. Some companies suspend their work, others reduce staff and/or employees' salaries to keep operations going in crisis times. To comply with Ukrainian law, it is important to formalise labour relationships correctly. What are the options for business in Ukraine during quarantine?
Shutdown (in Ukrainian – простій)
When the employer partly or fully suspends the operations of the enterprise due to the quarantine, the shutdown is a possible solution for the labour issues.
What documents are necessary for the shutdown?
The employer prepares
(1) the certificate on the shutdown (in Ukrainian – акт простою) which should specify the reasons and consequences of the shutdown, the shutdown period, the list of employees whose work is suspended, recommendations for the elimination of the shutdown;
(2) the order on the shutdown, which should envisage reasons for its issuance, time and date of the start of the shutdown and its termination, the need for the employee's presence at the workplace, the payroll conditions during the shutdown;
(3) if the order does not include the termination date, a separate order should indicate this date. The employer informs staff about the orders, and staff members sign these orders to confirm they have read them through and accepted. The employee's consent to the shutdown is not necessary.
What are the employee's rights during the remote work?
During the quarantine, the employer continues paying the salary to the employee in the amount not less than 2/3 of the employee's fixed salary.
IMPORTANT: The employer should declare the shutdown only when one employee's work is suspended, and another employee does not perform this work. The absence of such suspension may result in the collection of the average monthly salary during the forced absence in favour of the shutdown employee (resolution of the Supreme Court dated Jan 30, 2019 in case No. 210/5853/16-ц).
Paid annual vacation and unpaid vacation (in Ukrainian – щорічна оплачувана відпустка та відпустка без збереження заробітної плати)
When there is no need for the work of certain employee during the quarantine, and such an employee applies for a vacation, the employer may provide him/her with the vacation.
What documents are necessary for the vacation?
The employee submits the application which includes the date of the start of the vacation, its type (paid/unpaid), duration and reason. After that, the employer issues an order on the vacation which envisages the full name of the employee to whom the vacation is granted, his/her position, the vacation period and circumstances of the vacation. The employee confirms acceptance of the order with a signature.
What are the employee's rights during the vacation?
The employee does not receive the salary when he/she takes the unpaid vacation. If this is the paid annual vacation, the employee has the right for the salary as usual with its settlement no later than three days before the vacation.
IMPORTANT: The employer may not force the employee to take a vacation. The general term of the unpaid vacation (namely 15 days per year) does not include the unpaid vacation taken during the quarantine.
Remote work (in Ukrainian – дистанційна робота)
The employer often uses this type of employment due to the possibility for:
- the employee to continue his/her work and get a salary
- the employer to comply with the quarantine restrictions.
What documents are necessary for the remote work?
There is a legal requirement to conclude an agreement on the remote work in a written form, which means the consent of both parties (the employee and employer) to this work. However, the employer may formalise such work conditions only by the issuance of an order if the necessity of the remote work occurs during the threat of epidemic/pandemic spread. The employer informs the employee about the order, and the latter confirms acceptance of the document with a signature.
We recommend the employer to define in the order the methods for (1) control of the performance, (2) receipt of assignment by the employee, (3) his/her communication with the employer.
IMPORTANT: It is still unclear whether the issued order on the remote work means the change of "essential work conditions" (in Ukrainian – істотні умови праці), and therefore, whether it is obligatory for the employer to send the prior notification to the employee on the above change. However, the law allows the employer to entrust the employee to perform work at home during the quarantine and does not mention any obligatory prior notification on this type of work.
What are the employee's rights during the remote work?
The employee (1) may choose the place to perform his/her work, (2) has the full payment within the terms specified by an employment agreement. The employee using his/her own tools/working instruments can be eligible for compensation for their depreciation. Both parties agree the amount and procedure of this compensation.
Flexible working hours (in Ukrainian – гнучкий режим робочого часу)
It is possible to introduce flexible working hours if there is a work regime which is different from the internal labour regulations, and during this regime, the employee complies with the specified norms of working time (for example, monthly norms).
Flexible working hours may provide for:
(1) fixed time during which the employee must be present at the workplace;
(2) variable time during which the employee at his/her discretion determines work periods within the norms of working time;
(3) time for rest.
What documents are necessary for flexible working hours?
Generally, this option is possible upon agreement between the employee and the employer for a specified/unlimited term upon entry into employment or later. However, during the threat of epidemic/pandemic spread the employer may formalise flexible working hours by the issuance of an order without the employee's consent. The employer informs the employee about the order, and the latter confirms acceptance of the document with a signature.
What are the employee's rights during flexible working hours?
Flexible working hours do not have implications for the position, payroll conditions, social guarantees and other rights of the employee envisaged by the labour law. This rule is also applicable to the remote work.
IMPORTANT: The employer may not introduce flexible working hours when the performance of the employee's duties requires his/her presence during the specified working hours (including trade, consumer services, transport work) or when such regime contradicts with the requirements of safe working conditions, or when the enterprise is constantly operating, or in case of multiple-shift work organisation.
In turbulent times caused by the pandemic for employees and employers, it is essential to find a solution that will maintain the balance and allow to continue operations with minimum loss for business. The analysis of the above labour options and a choice in favour of the most relevant one is the effective method to find that solution in each particular case.
By Olga Tersina, Associate, and Yuliya Bleshmudt, Associate, Integrites
