Working during non-working days with pay. FAQ
Upd.: New President decree extends non-working period until April 30, 2020 http://kremlin.ru/events/president/news/63134
Can companies and organizations operate normally from March 30 to April 30?
Companies and organizations cannot unfortunately operate normally during that time. Presidential Decrees No. 206 dated March 25, 2020 and No. 239 dated April 2, 2020 have introduced certain restrictions related to the fight against COVID19.
The week from March 30, 2020 to April 30, 2020 has been declared a non-working week with pay. Only the employees of state institutions and private companies listed in the presidential decree are allowed to work normally (by default these are state institutions providing medical care and ensuring public security) as well as a number of private companies (а) selling medicines (pharmacies), food and essential goods, (b) carrying out urgent repair and loading/unloading operations, or those whose (c) activity is continuous from a technological standpoint. The full list of these exceptions can be found at http://kremlin.ru/acts/news/63065 and http://kremlin.ru/events/president/news/63134. At your request, we would be pleased to determine whether your company is included in the list specified in the decree and advise you on how to continue your activity.
Please note that the Russian Labor Code does not provide for the concept of “non-working day with pay”, so most comments and recommendations today are based on a “broad interpretation” and analogies to related rules (in particular, analogies to “days off”).
The following should also be noted. The rules governing work from March 30 to April 30 have been adopted rather hastily, and some provisions of the decrees are not consistent with the Russian Labor Code, so it is not always possible to determine what the sanctions against employers will be if they fail to comply with some of these rules. Although the interpretations and recommendations we offer tend to be more conservative in nature, even their observance cannot guarantee from possible liability for violation of labor and/or sanitary and epidemiological laws because not all issues have been clarified by state authorities yet.
What possible options are there for work from March 30 to April 30?
If your company is not among those in the list of exceptions, then by default its operations should be suspended because all employees are entitled under the presidential decrees first to five and then 30 non-working days with pay.
Employers, however, are still entitled to agree with their employees to continue working throughout that period subject to a number of significant restrictions.
Restrictions in St. Petersburg
St. Petersburg Government Decree No. 161 dated March 25, 2020 prohibits individuals to visit the premises of enterprises and organizations if these individuals are not in the list of exceptions provided by the presidential decree.
Restrictions in Moscow
Moscow Mayor Decree No. 34-UM dated March 29, 2020 requires people not to leave their place of residence (stay home) except in cases of emergency and other direct threat to life or health, or in cases where it is necessary to move from a place to another to carry out activities (including work) that are not suspended under the presidential decree.
As follows from the above, we recommend companies whose activities do not fall under the exceptions provided by the presidential decree to organize work only remotely for the period from March 30, 2020 to April 30, 2020.
If remote work is not an option (whether fully or partially), an additional analysis would be required to determine whether your company falls under the exceptions provided by the presidential decree. It will also be necessary to draw up and approve a number of internal regulations some of which will be different depending on the region (regulations on work continuation, strengthening of sanitary and epidemiological control measures, safety standards, certificates giving the right to visit the workplace, etc.) and inform the authorized bodies of the continuation of activity in the prescribed form.
The main thing for companies in this situation is to strictly adhere to health and safety measures to ensure that the employees working at their office or site are safe.
How much should employees be paid from March 30 to April 30?
The Russian Ministry of Labor has considered this issue and prepared some recommendations to employees and employers in connection with Presidential Decree No. 206 dated March 25, 2020 Announcing Non-Working Days in the Russian Federation.
Item 3 of these recommendations sets out that “non-working days are not days off or public holidays, so they should be paid as usual rather than the increased rates paid for days off and public holidays.”
The practical aspect of this issue should also be noted. Companies are not entitled to oblige employees to work from March 30 to April 30, so employers should individually determine the conditions under which their employees agree to continue working during that period. Employers could, for example, offer some incentives in addition to usual salaries.
This does not apply to the companies that are entitled under the presidential decrees to continue operating normally. No additional agreements between employers and employees are required in this case, and employees must continue working on the terms and conditions specified in their employment contract.
What has changed for vacations taken from March 30 to April 30?
The decrees provide for no additional incentives or restrictions on vacations falling entirely or partially in the period from March 30 to April 30.
In practice, this means that vacations are not extended by the number of “paid non-working days” as is the case with public holidays. In other words, employees on vacation at that time will not be entitled to additional vacation days.
From a conservative standpoint, we would not recommend non-working companies (i.e. those that are not listed in the presidential decrees) to grant vacation only on these days as the provision of annual paid leave only on days off does not comply with labor law requirements (Russian Ministry of Labor Letter No. 14-2/ООГ-9754 dated December 7, 2018). Nevertheless, even if employers grant annual leave in that period, we do not consider the risk of administrative liability for employers as very high (especially if vacations are granted based on pre-drawn up approved vacation schedules for 2020).
Moreover, if your company continues operating as per the provisions of the presidential decrees, then vacations should be granted as usual.
What is the procedure for formalizing work for the period from March 30 to April 30?
As indicated above, the companies that will continue operating as set out in the presidential decrees will need to do the following:
- Adopt a number of internal regulations (orders) for continuation of work. These regulations will vary with the region (there are some differences, in particular, between Moscow and St. Petersburg);
- Report the continuation of work to the appropriate state body as prescribed;
- Provide employees with passes for unrestricted access to the place of work.
For the other companies, if they want to continue operating, they will need the consent of their employees for job continuation. They will also need to issue an order with:
- A list and categories of employees continuing to work (as well as their consent for work);
- The form of work (as indicated above, we recommend only remote work);
- A list of incentive measures taken if necessary for employees to work from March 30 to April 30, 2020.
FAQ on the formalities for certain actions (vacation, employment, etc.) performed from March 30 to April 30
We have addressed in this section a number of practical questions raised by our clients.
As indicated above, although the recommendations we provide are on the conservative side and favor the least risky approach, they still cannot fully exclude the possibility of claims from state authorities.
Can employees be sent on paid leave from March 30 to April 30?
It would be better for companies that are not supposed to operate (those not listed in the presidential decrees) to avoid doing so although it would be possible for some individual pressing cases, especially if vacations were agreed beforehand between the employee and the employer as indicated in the vacation schedule.
The companies that continue operating as per the presidential decrees may grant vacation as usual.
Can employees be dismissed by agreement of the parties from March 30 to April 30?
State authorities will certainly pay particular attention to any cases of dismissal/layoff during that period. However, no moratorium on the conclusion of agreements for termination of employment has been established, so it is indeed possible, especially if employers assess the risk of subsequent claims from dismissed employees as low (e.g. statements that the employer exerted pressure on its employees).
Can employees be dismissed upon expiration of their fixed-term contract in April?
We think that this should be possible as we assess the risk of potential claims from state authorities as not very high in this case.
Is it possible to change the work schedule of employees by mutual agreement, for example, switching to a 4-day week or part-time?
This can be done, in our opinion, provided the employee does not subsequently declare that pressure was exerted on him/her by the employer to formalize this change of schedule.
It should also be noted that Decree No. 152 issued by the Russian Ministry of Labor on March 24, 2020 provides that public employment agencies are to monitor the labor market and request figures from companies about their employees (i.e. the number of employees, the number of dismissed employees, the number of employees on vacation, the number of employees switched to part-time, etc.).
We cannot yet state with certainty which article of the Code of Administrative Offenses can be applied for failing to provide this information. It will be possible to give an accurate answer to this question only in view of further law enforcement practice.
We would be pleased to provide more detailed advice on the above issues as well as assist you in preparing your company’s internal documents regulating work from March 30 to April 30, 2020.