Deputies of the Moscow city Duma introduced a bill1 suggesting adding provisions for remote work to the Labour Code. The ground for making such amendments are the difficulties in formalising transfer of employees to remote work which the employers faced during the pandemic.
As indicated in the explanatory memorandum to the bill, «at present, a significant part of citizens, due to the current epidemiological situation, temporarily or partially (according to a special schedule) carries out their work in remote form, that is, outside the main stationary workplace». Indeed, non-working days declared in Russia were only nominative non-working: the majority of employees proceeded to work from home. It was a kind of challenge for many employers, since the existing legislation does not provide for the possibility of remote, rather than distant work (for differences see here).
The bill proposes to amend Article 57 of the Labour Code (content of the employment contract). This means that there would be no need to conclude a new employment contract (as with distant work) in order to transfer to remote work, it is no necessity to — updating the existing one will be enough. The amendments will be introduced in the part, which states that the employment contract may provide for other conditions that do not worsen the position of the employee: in this way, deputies show employers that transferring to remote work should not lead to qualitative worsening of the employee’s working conditions.
The following provisions will consider obligatory to agree with the employee
1. Terms or schedule for remote work
Here we see restrictions, which at the same time are indicators that help to distinguish remote work from distant work (Chapter 49.1 of the Labor Code), home work (Chapter 49 of the Labor Code) and travelling work. So, remote work cannot be permanent — it might have certain limitations. At this stage, it is proposed either to limit the remote work to a certain period, or to set a special schedule.
For example, if an employee needs to leave the residence of the employer (city) for some time, then in the supplementary agreement to the employment contract, you can specify the period during which the employee will work remotely. Several questions are already arising here. First, how long this period can last. In other words, how long can remote work be remote, but not distant. Secondly, how to determine this period — applying days, weeks, months, or to set the exact terms. Thirdly, what shall employers apply to, if it is impossible to determine the exact term (for example, the employee has a mild, but dragging cold, allowing him to continue working from home without any special medical treatment). The employers can handle the second question on their own, but the rest still need clarifications.
The schedule option is simpler: the employee and the employer, with their agreement set certain days that the employee spends at the stationary workplace and the days when the employee works remotely.
For example, on Monday and Tuesday, an employee works remotely, and from Wednesday till Friday — at a stationary workplace, that is, in an office. The bill does not indicate a legal consequence if employee decides to visit office on a «remote» day. Probably, every employer will have to define this in internal work regulations.
2. Working conditions
The following will be necessary to provide in the employment contract of those employees with whom remote work schedule was agreed:
- working hours
- ways and means of communication between the employee and the employer.
- the procedure for providing an employee with equipment, tools, technical documentation and other means and objects necessary for the performance of labor duties, or the provision of appropriate compensation;
- as well as the procedure for the employee to present the results of the work performed and their acceptance by the employer.
In this part proposed regulation is like the existing regulation of the work of distant workers. Employers have long spelled out these conditions in distant employment contracts. The issue of monitoring the performance of the internal work regulations and labour duties also remains unsolved, but the practice has already developed its own approaches. So, employers tend to oblige employees to use geolocation, regularly respond to requests from the employer (for a certain period), and add time spent on their duties in special time tracking systems. If it is impossible to fulfill any of these obligations, an employer warning mechanism is also fixed.
The question of the wages of remote employees remains unsolved also. Based on the definition given in the Labor Code, wages depend, inter alia, on the conditions of work performed (Article 129 of the Labour Code). Employees with valid employment contracts who are switching to remote work are legally protected from voluntary changes in wages, as remote work, as the bill suggests, cannot worsen their positions. The question is about those employees who conclude a new employment contract with the conditions of remote work. It is assumed that their wage should not be less than that of «comparable» colleagues, both in view of the broad interpretation of the prohibition of the worsening of the position of the employee (Article 74 of the Labour Code) and the prohibition of any discrimination in labour relations (Article of the 3 Labour Code).
The adoption of the bill does not require significant amendments to the legislation and does not fundamentally change the current regulation of labour relations. We assume that the bill will be considered fairly quickly in view of the fact that the current situation has clearly shown that the provisions on the possibility and procedure for transferring workers to remote work should be fixed at the legislative level.