As of May 12, 2020, the period of so-called "non-working days" established by Presidential Decrees No. 206, dated March 25, No. 239, dated April 2, and No. 294, dated April 28 in Russia officially ended. Although most of the COVID-19 protective measures still apply at the regional level, Russian federal and regional authorities are expected to issue further regulations and guidance regarding the easing of COVID-19 related restrictions in the coming days. With that in mind, employers are considering return-to-work plans. In this OnPoint, we will outline a number of issues which employers will need to address in the course of getting employees back to work (with a focus on employers located in Moscow).
1. What does the end of non-working days mean?
Although the "non-working days" established by the Presidential Decrees3 have ended, regional authorities may introduce and/or extend restrictions on the activities of certain businesses (with the exception of those specifically exempted from such restrictions, e.g. organizations with continuous operations, healthcare and pharmaceutical organizations, etc.) depending on the situation in a particular region. Employees of businesses which are subject to restrictions should continue to be paid their normal wages. In terms of Moscow, according to Moscow Mayor Sobyanin Order No. 12-УМ, dated March 5, 2020 (as amended) ("Moscow Order"),4 there are businesses:
- whose activities are suspended – their employees should not and may not return to the workplace
- where visits to their premises are suspended – their employees should not, and may not, return to the workplace; and
- where visits to their premises were not suspended or have resumed – their employees may return to the workplace and visitors may enter their premises subject to certain requirements.
2. What requirements should employers meet with respect to the workplace?
Employers should review and comply with COVID-19 related regulations and guidance adopted by both federal and regional authorities relating to returning to work (e.g. sanitary rules, use of personal protection equipment ("PPE"), social distancing, etc.). Under the Moscow Order, employers whose employees may return to work should:
- ensure that employees wear masks/respirators at their work places and/or within company grounds, except where employees have separated spaces and no one else is around them;
- ensure that employees wear gloves at their work places if they are not isolated from others and are in common areas
- arrange for temperatures of employees to be taken no less than once every four (4) hours including at the entrance to the workplace or company grounds
- ensure compliance of the workplace with social distancing rules or installation of dividers in the workplace, and
- ensure compliance with the recommendations of Rospotrebnadzor to prevent the spread of COVID-19.
3. What key steps should employers take prior to the return of employees to the workplace?
Subject to applicable laws and regulations, employers should:
- decide which employees may return to work based on operational needs and which employees may continue working remotely, where practicable;
Those employees whose presence in the workplace is required due to operational needs may return to work, subject to applicable laws and regulations. If any such employees are on vacation, employers may recall them before the end of the vacation period subject to their consent (in such case employers will have to issue respective orders). If any such employees are working remotely based on relevant addenda made to their employment agreements, they may return to the workplace only upon execution of new addenda, which must terminate any provisions relating to remote work. Under current Russian law, it is, unfortunately, not possible to state that employees can work both in the workplace and remotely, based on a particular schedule in their employment agreements. The relevant amendments to Russian law which would permit this type of arrangement are under discussion.
Once such a schedule is established, with the consent of the employee, it should not violate Russian employment law. Those employees whose presence in the workplace is not required may be retained as remote workers but addenda to their employment agreements may be required to extend the term of working remotely.
- adopt and/or revise local regulatory orders in connection with the return of employees to the workplace and train employees in advance on requirements with which they will need to comply upon their return to the workplace (e.g. use of PPE, etc.);
Such local regulatory orders may include rules on sanitary and other protective measures, testing for COVID-19, reporting symptoms, etc. All new local regulatory orders and revisions thereto should be acknowledged by employees;
- carry out a workplace risk assessment;
Employers may need to alter the workplace (e.g. rearrange work places, install dividers, etc.) to ensure compliance with applicable laws and regulations. It should be noted that some changes in office premises may require consent from landlords so lease agreements should be reviewed to confirm;
- consider appointing an employee to be responsible for implementation of protective measures at the workplace.
4. Which employees are not allowed to return to the workplace?
Subject to applicable laws and regulations, employers may be prohibited from allowing certain employees entry to the workplace. For example, under the Moscow Order, the following employees should not be allowed in the workplace and/or company grounds:
- employees subject to self-isolation, (those over the age of 65, etc.) with the exception of those employees whose presence in the work place is critical for the company's operations;
- employees diagnosed with diabetes mellitus, obesity, hypertension 2, chronic obstructive disease, bronchial asthma 2;
- pregnant women; and
- employees who themselves, or whose cohabitants, display symptoms of, or are diagnosed with, flu, COVID-19, or pneumonia.
The Moscow Order requires employees to report on the above circumstances. With respect to the above employees, they may either continue working remotely, if possible, or take a leave of absence if they are diagnosed with flu or COVID-19 and are not able to work. Furthermore, if the above employees are not diagnosed with flu or COVID-19 and, thus, are not entitled to take a leave of absence but cannot work remotely due to their job functions or any other reason, employers may discuss with such employees taking paid vacation days or unpaid vacation days subject to their consent.
5. What can be done if an employee refuses to return to the workplace?
If an employee refuses to return to the work place/ the employer's premises due to the threat of COVID-19 or any other reason (childcare, employee's uncertainty that an employer has taken sufficient protective measures, etc.), then, provided that such an employee was previously moved to remote work, the employer cannot force him/her to return to the workplace since mutual consent is required (as mentioned above, it is necessary to execute an addendum to his/her employment agreement in order to terminate the provisions regarding remote work). If remote work has not been introduced or has been terminated (e.g. due to expiration of the term), then refusal to return to the workplace may be a ground for dismissal of such employee. However, before any disciplinary action is taken (including dismissal), it is advisable for employers to confer with such employee and consider various options available under Russian employment law to allow the employee to work to the extent practicable (for example, to continue to work remotely, or follow a specific work schedule (by shifts), etc.).
6. Are there testing obligations for employers?
Subject to applicable laws and regulations, employers may be required to carry out (or procure the carrying out of) testing of employees. For example, under the Moscow Order, employers must:
- conduct COVID-19 tests with respect to not less than 10% of employees (in the office/at the work premises) from May 12, 2020 through May 31, 2020,
- conduct COVID-19 tests with respect to not less than 10% of employees starting from June 1, 2020, every 15 days;
- ensure that employees are tested for COVID-19 and immunity to it based on terms and procedures approved by the Moscow Health Department.
7. What cost cutting measures can be considered by employers?
In general, cost-cutting measures with regard to employees may be difficult to implement due to the need to obtain the consent of employees in a number of cases (except in the case of redundancy).However, some options may be available, subject to compliance with the requirements of Russian employment law, including the provision of proper notice and acquisition of consents. These include:
- introduction of part-time work for certain employees upon execution of appropriate addenda to their employment agreements or in exceptional cases, at the employers' initiative, up to six (6) months;
- providing employees with paid and/or unpaid vacation days subject to their consent, or in accordance with a vacation schedule;
- change/cancellation of bonus/salary increase policies; and
- decrease salaries.
Although redundancy measures are not expressly prohibited by
COVID-19 related regulations, they would may be frowned upon by
state authorities and businesses implementing such measures may not
be entitled to COVID-19 related support measures. The laws and
regulations related to the easing of COVID-19 related protective
measures are changing rapidly and thus new rules and regulations
are likely to be adopted. We will continue to monitor the situation
and provide updates as new developments occur.
Originally published May 28, 2020.
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.