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Coronavirus – which personnel decisions are lawful?
Author: Inesa Letych
Source: NV Business portal, 12 March 2020

Updated in view of new Law No. 3219 of 17 March 2020 (Law No. 3219)

 

The panic caused by Covid-19 epidemic force us to make fast and rash decisions, from crazy stocking up on food to closure of offices and suspending of business activities.

However, despite the governmental and municipal authorities' decisions, the regime of increased panic does not cancel Ukrainian labor laws. Thus, in order to avoid backfire in future there is a need to figure out what employers' measures would be out of legally permitted pattern.

It is important to note that much-awaited Law No. 3219 does not provide for significant changes letting to optimize the HR expenses during the epidemic period. Among important changes of Law No. 3219 are only the possibility of unlimited unpaid vacation (still requiring consent of employees) and mandatory work from home. These changes would enter into force only after the publication of Law No. 3219, which hopefully may happen within coming days. As previously, any other optimizing options are possible only as a result of a dialog with personnel.

 

Vacations to all

It is well known that a vacation can be paid and unpaid.

Despite the coronavirus, an employee may be "forced" to take a paid vacation only in cases if the vacation dates were agreed previously according to the employee application or the vacation schedule. Otherwise the employee can take an annual vacation only at employee's consent.

The situation with the unpaid vacation is not better. Firstly, such vacation is also possible only at employee's consent. Secondly, its duration is limited to 15 calendar days a year in total.

An important change according to Law No. 3219: an unlimited unpaid vacation is permitted during the quarantine period established by the government. However, as usual, only if an employee consents to such vacation.

Additional opportunity for unpaid vacation is possible for employees with children of up to 14 years old for the entire quarantine period, though also only at theirs consent.

 

Remote work      

A lot of companies choose this option as mutually beneficial for business and staff. However, the main problem of this option is an outdated labor legislation.

In general, remote work is allowed, though it is regulated by the Decision of the Governmental Committee of the USSR for Labor and Social Affairs and the Secretariat of AUCCTU No 275/17-99 of 1981. This Decision sets forth a possibility to work only ''from home'' but not from any other remote place outside of the office. The employer also has to ensure that the employee has all appropriate living conditions.

In addition, the employer can not oblige the employee to buy the necessary equipment (for example, a laptop). Such equipment is either provided by the employer or the employee can use their own equipment at their consent and with certain depreciation allowance from the employer.

Traditionally, there is no possibility for both prompt and mandatory implementation of such remote work schedule, as a consent of each employee is required.

An important change according to Law No. 3219: during the quarantine period established by the government or during implementation of the measures to combat the coronavirus, no employees consent is needed to send them to work from home.

 

Suspension of business activity

Even if a company decides to temporarily suspend its activity until the improvement of the situation and relieves its employees from work, it still needs to pay salaries. In this case, the provision of the Ukrainian Labor Code on the business interruption would apply. According to Article 113 of the referred Code, the business interruption period with no employees' fault is paid in the amount of two thirds of ordinary base salary.

 

Drastic measures – shorter working hours, staff reduction

Unfortunately, as of today, a number of companies have to consider seriously these drastic measures as well. However, strict rules of labor law remain in place and even new Law No. 3219 implies no changes for this event.

In particular, any (even temporal) mass changes to the working day duration currently require providing a two months prior notice to employees. As an alternative, employers may only introduce shorter working hours upon individual consent and negotiations with each employee separately.

Also, the procedure for the staff reduction remains unchanged and it is still required to give a two months' prior notice and observe a number of other formalities before dismissing anybody.

 

Work with (ex)tourists

So, what to do with those who came back from China/Italy or just were contacting people infected with the virus?

The situation in this event is also complicated, as according to Article 28 of the Ukrainian Law ''On Ensuring of Sanity and Epidemiological Well-Being of Population'' only those employees who have dangerous diseases (which now also include coronavirus) or are carriers of the pathogens of these diseases can be suspended from work. Obviously, an employee with light symptoms, even if they came back from Venice, can not automatically qualify as the carrier of the infection and the possibility of their suspension is questionable.

The best what an employer can do in a similar situation is to negotiate with such a workaholic about the remote work or vacation/sick leave.

 

Sick leave for the isolated

Of course, sick employees have a possibility of paid sick leaves under Ukrainian social security laws. In addition, according to Article 31 of the Ukrainian Law ''On the Protection of the Population from Infectious Diseases'' people on the territory of the quarantine, who had a contact with infected people, can be put into an equipped governmental isolation with possible sick leave coverage for the specified period. Also, the Procedure for Issuance of Sick Leave Certificates No. 455 envisage a paid sick leave for servicing personnel who directly contact with their customers if they had a contact with infected people. However, there are no provisions on possible sick leave for self-isolated employees.

 

Prohibition of trips abroad

Finally, legislation does not provide for a right of employers to prohibit their employees to travel to the infected territories. Similar orders for employees may have a status of recommendation only. The only step that employers can take is to cancel business trips of employees to the countries with coronavirus, or even any other business trips. However, recently adopted quarantine measures, including travel bans and transportation suspension, remove these issues from the agenda.

 

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