How should employees be paid during these "non-working days"?
Based on the Recommendations, for the purposes of Russian Labor law, "non-working days" do not constitute weekends or non-working public holidays; therefore employees which are covered by the Order should be paid their normal wages during "non-working days".
Is it possible for non-exempt employers to operate during “non-working days”?
The Russian Labor Code does not regulate “non-working days”. Instead, it contains rules related to working on weekends and non-working public holidays. Neither the Order, nor the Recommendations, specifically prohibit employers from engaging employees during these "non-working days." with their consent, instead applying rules related to working on weekends and non-working public holidays by analogy. However, there are still certain risks, due to the unclear wording of the Order, if an employer who does not clearly fall under the above exceptions decides to have employees work during these “non-working days”. To mitigate these risks employers must ensure that:
- All employees sign written consent to work during "non-working days"
- Any such employees are paid at a double rate, as required by the Russian Labor Code on "non-working days" or that employees are paid their normal rate and are provided with additional vacation days upon the employee's consent
Based on a company's internal regulations, certain additional actions may need to be taken.
What is the potential liability for engagement of employees during these "non working days"?
Failure to comply with employment laws and regulations may result in the imposition of administrative liabilities, in the form of a fine on a company and its officers.
Moreover, given the current situation and the purpose of the Order, authorities may try to interpret it broadly as establishing sanitary and epidemic prevention measures. Failure to comply with such measures may result in additional administrative liability, in the form of a fine to the company and its officers, as well as the additional suspension of the company's activities if violated.
Russian law also means that criminal liability may additionally be imposed on a company's officers for a violation of sanitary rules which have resulted in mass infection through negligence, and or the death of an individual or individuals.
To mitigate the risks of either administrative or criminal liability companies should allow employees to work remotely where possible, develop internal regulations and measures related to maintaining operations during the Coronavirus COVID-19 period and otherwise comply with government-mandated measures.
As part of the Government's response to COVID-19, a draft law amending the Russian Criminal Code has recently been submitted to the State Duma in order to increase criminal liability for the violation of sanitary epidemic prevention rules. In addition, the Russian Government is considering similar amendments to the Code of Administrative Offenses.
Are there any further exemptions to the Order?
The Order is specifically aimed at ensuring the health and safety of the population, which means that the Order presumably should be interpreted narrowly and not apply to those companies which have already introduced protective measures, although this is not specified in the Order. It may, for example, exempt companies where employees are working remotely, although this is not explicitly stated in either the Order or the Recommendations.
Notwithstanding the clarifications provided by the Recommendations, the Order still raises numerous questions with respect to its implementation.
Further measures
In addition to the “non-working days”, President Putin announced additional protective measures for employees and employers, including:
- An increase in sick leave compensation to the full national monthly minimum wage until the end of the year
- An increase in the maximum amount of state benefits for unemployed individuals to the full national monthly minimum wage
- A reduction in social insurance contributions for all small and medium-sized enterprises from 30% to 15% of monthly salaries which exceed the national monthly minimum wage
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