Ukraine has recently updated its legislation on remote and home-based work. However, employers face many practical issues, which have become relevant with the introduction of additional quarantine restrictions in most of Ukraine.

In this article, we comment on the ins and outs of converting to remote work as a more common COVID-19 quarantine work mode in Ukraine. Additionally, we offer an algorithm of actions for situations when the employee refuses to work remotely and highlight the benefits of a written employment agreement on remote work even during quarantine.

Difference between home-based and remote work in Ukraine

New legislative rules introduced to the Labour code of Ukraine in February 2021 allow the parties of the employment agreement who opt for work outside the office to choose between two options:

  • Home-based work: the workplace of home-based employees usually coincides with their place of residence. The home-based workplace has a fixed area and the technical means necessary to manufacture products, render services. An employee's fixed workplace may not be changed without the parties' agreement, except when reasons occur that render an employee's work impossible. Home-based work can be established only for persons who have or may be taught the necessary practical skills. Under the agreement on home-based work employees are subject to the employer's general work mode, unless otherwise provided by the labour agreement.
  • Remote work: under the agreement on remote work (telework) an employee shall independently determine her/his workplace anywhere outside the employer's premises/territory and is responsible for ensuring safe and harmless working conditions. It is also possible to combine remote work with working on the employer's territory. One of the differences from the home-based work is that under remote work agreement the work is performed with the use of information and communication technologies. Also, such agreement may be concluded only for work that does not imply any dangerous and harmful production (technology) factors.

In both remote and home-based work modes the employer is responsible for the safety of the equipment provided to the employees (if any) as well as for conducting occupational safety trainings, but employees are responsible for ensuring their occupational safety at their workplaces.

Converting to remote work in Ukraine

Speaking of ways for transfer to remote work, it is reasonable to divide them based on the time for switching to remote work:

  • During COVID-19 quarantine - a written remote work agreement is not mandatory, but advisable. The quarantine in Ukraine is formally established until 30.04.2021 but expected to be extended. Formalization of the remote work transfer may be done simply by the employer's order without entering into a written remote work agreement. In such case the employee is familiarized with the order within 2 days upon its adoption, however, before conversion to remote work.
  • In the post-quarantine time – a written remote work agreement is mandatory. Still, the legislation holds certain exceptions for transfer to remote work only by an order (without separate agreements) – in cases of threats of the spread of epidemics, pandemics, the need for an employee to self-isolate in cases established by legislation, an emerging threat of armed aggression, man-caused, natural, or another emergency.

In both cases entering a model written agreement on remote work is possible by the parties' agreement. Currently a model agreement is developed by the Ministry of Economy and is expected to be adopted soon. Such type of agreement will contain certain mandatory provisions as well as fields for additional rules to be negotiated by the parties.

Among the advantages of concluding a remote work agreement in writing (even during quarantine) we may highlight at least the following issues:

  • Determining electronic means of communication (e.g., e-mail, messengers) to familiarize an employee with the employer's orders and internal documents as prescribed by Article 29 of the Labour Code, communication procedure and control of work performance;
  • Including provisions on full liability;
  • Regulating the procedure for transfer and use of property, providing compensations;
  • Setting the working hours (including rules on flexible working hours and disconnection periods);
  • Establishing rules on the transfer of intellectual property rights;
  • Entrenching data privacy and security rules, Bring Your Own Device (BYOD) rules for use of own electronic devices by employees to perform working tasks, etc.

Still, the employee may choose not to agree to such work regime by either refusing to sign remote work agreement, or by refusing to fulfil the employer's order on temporary transfer to remote work. If such situation takes place, the following actions are available for the employer:

  • Concluding a model agreement on remote work within the procedure of changing essential working conditions of employees under the rules of Article 32 of the Labour Code with at least two-month notice. In case of an employee's refusal to continue working in the changed conditions the employee is to be dismissed with a severance pay in the amount of at least 1 average monthly salary;
  • Disciplinary action (reprimand) for refusing to comply with the employer's order on temporary conversion to remote work (only in cases of threats of the spread of epidemics, pandemics, the need for an employee to self-isolate in cases established by legislation, an emerging threat of armed aggression, man-caused, natural, or another emergency).

If remote work is not possible due to other reasons (e.g., due to specifics or nature of the employee's work function), there are the following options available (upon negotiation with the employee):

  • Home-based work
  • Paid leave
  • Unpaid leave (including until the end of quarantine)
  • Flexible working hours

If employee's work function or disagreement does not allow to opt for any of the options provided in this article, the employer may announce the temporary shutdown (downtime) for such employee (with a payment of at least 2/3 of the employee's average earnings).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.