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February 11, 2021

Remote and Home-Based Work in Ukraine: status quo and planned legislative changes

Businesses all over the world are adjusting their internal processes due to COVID-19 restrictions. Although working from home only seemed to be a temporary measure at the beginning of the pandemic, companies are now considering introducing remote work or work-from-home as a regular coincidence, where possible.

In practice switching to working-from-home for some Ukrainian employers was perhaps even easier (compared to other countries) due to modern IT-solutions, good Internet coverage and general flexibility of personnel. However, there are still certain loopholes in legislation that could potentially lead to employees’ claims.

Below we give a brief legal overview of the status on remote and home-based work as well as anticipated changes.

 

Status before COVID-19
Remote work was not regulated at the legislative level in Ukraine at all, until March 17, 2020. The employer could only introduce procedures for working from home in accordance with the formally effective Soviet-time Regulations respecting the Working Conditions of Homeworkers dated September 29, 1981.

However, as work on computers was not envisaged back in 1981 in the USSR, provisions of the mentioned Regulations apply mostly to vocational professions and manual work from home, containing requirements that are difficult to meet (for example, the need to inspect the living conditions of an employee with a trade union).

 

Remote and Home-Based Work under COVID-19 conditions: current status
After Ukraine imposed the quarantine on March 12, 2020, it became clear that the laws must be immediately updated to regulate remote work. The lawmakers have partially regulated the issue by adopting respective amendments to the legislation on March 17, 2020 and March 30, 2020 as follows:

- Employee’s consent is not required for remote work during quarantine, and a relevant company order is enough to introduce such working mode.

- In “normal times” remote work is formalized in a written employment agreement.

- Employees working remotely plan their work themselves, and are not under any employer’s working schedules and regulations (unless otherwise envisaged by the labor agreement)

Nevertheless, these provisions are not perfect either, because provisions on remote work are mixed with working from home and flexible working hours in one Article 60 of the Labor Code. At the same time, the law fails to regulate individually the occupational health and safety issues, special approaches to protection of confidential and other information of the employer during remote work (working from home), and remote work from abroad (permanently or temporarily). It is also still unclear how to deal with remote workplace injuries or monitor remote work discipline. Moreover, there is no certainty as to whether such workers should be compensated for utility expenses.

Thereby, although there were several attempts to introduce a new type of work in Ukraine, the regulation of remote and home-based work requires not only differentiation between these concepts and their separation from flexible working hours, as suggested by draft Law No. 4051, but also a more detailed elaboration and harmonization with other laws.

 

Draft Law No. 4051
Finally adopted by the Verkhovna Rada on February 4, 2021, this draft Law has become a next step towards addressing the teleworking issues. Although its signing by the President is still pending and the final text is not available yet, we expect that the key points outlined below will remain unchanged.

Key anticipated changes:

- The draft Law differentiates between the concepts mixed in the Labor Code and divides them into three independent articles: on working from home, remote working, and flexible working hours.

Home-based work is controlled by the employer and is more suitable for home-based production. Home-based work requires a designated workplace and technical means. The employee’s workplace is fixed and may not be changed by the employee without the employer’s consent.

With remote work, instead, an employee can work outside of the employer’s premises in any place of his/her choice, using information and communication technologies (e.g. IT and other non-manual services).

- The so-called blended working mode is allowed: a combination of remote work and work in the offices (premises) of the employer, which is becoming increasingly popular globally;

- It is envisaged that the employers and employees shall make a written agreement in a standard form to be approved by the Ministry of Economic Development (unless there is a threat of a pandemic, etc.) for both remote and home-based work;

- The draft Law introduces new occupational health and safety rules: in case of remote and home-based work the employer is responsible only for safety and technical condition of its equipment, provided to employees.

Both with the remote and home-based work, however, the employer shall regularly instruct (train) employees on occupational health and safety and fire safety depending on the equipment and tools recommended or provided by the employer and used by the employees;

- Homeworkers and remote workers shall bear full financial liability for the equipment provided for their use (the draft Law allows entering into a full liability agreement regardless of an employee’s position);

- Employees of certain protected categories (e.g. with a child under 3 (6) years of age, pregnant women, parents of two or more children under the age of 15 or of a child with a disability etc.) may work remotely or as homeworkers if it is compatible with the type of work they perform and the employer has relevant resources and means. An employee may also request a temporary switch to remote work (for up to two months) from his/her employer if he/she has suffered from actions that reveal signs of discrimination at workplace (if the type of work he/she does allows so and the employer has relevant resources and means);

- The draft Law eases requirements for formalization of remote and home-based work amid threats of epidemic, pandemic, natural or other threats, allowing the same without compliance with Article 32 of the Labor Code (e. without a two months’ prior notice of such changes);

- The document guarantees the right to disconnecte. guaranteed rest time;

- Provision of equipment or compensation for equipment, owned or leased by employees is to be regulated in individual employment agreements;

- Employees may receive company orders (instructions), notices, and other documents, which relate to their rights and responsibilities, using the means of electronic communication specified in the employment agreement. In this case, the employees may acknowledge that they have read and understood the documents by exchanging e-documents with the employer. This provision is included in the article that regulates hiring procedures, but it is worded in such a way as if it applies to any employer’s orders and documents that may arise in the course of the employment relations. It is worth noting, however, that Ukrainian courts are still quite skeptical about electronic evidence in labor disputes, so we would recommend a prudent approach to the introduction to company documents using electronic means of communication and to the use of e-documents in personnel document management.

In any case, means of electronic communication and procedures for the use of electronic documents must be clearly regulated both in individual employment agreements and in the employer’s internal regulations.

In view of the adverse epidemiological situation in Ukraine and globally, it is recommended to approve respective policies on remote and home-based work in every local company, as well as to adjust individual employment agreements for such employees. Such documents could regulate means of communication, ways to control the work performed by teleworkers, cybersecurity measures, BYOD- and workplace privacy rules as well as other aspects.

It is quite obvious, that in Ukraine (as actually in many other countries of the world) the legislation cannot keep pace with current developments, therefore local procedures and individual agreements could play an extremely important role in any company (as long as they do not contradict the law).

 

First published on NUCC web-site 

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