The recent Decree of the Russian President (“Decree”)1 establishes non-working days for the week from March 30 to April 3, 2020, to ensure the sanitary and epidemiological well-being of the population on the Russian territory, with the preservation of salaries for employees. his requirement does not apply to employees of the following organizations:
- continuously operating organizations;
- medical and pharmacy organizations;
- organizations that provide the population with food and goods of prime necessity;
- organizations that perform urgent work in emergencies, in other cases that endanger the life or normal living conditions of the population;
- organizations that perform urgent repair and handling operations.
Although the reasons for adopting the Decree are quite understandable, it is not clear how some of its provisions will be interpreted and applied.
For instance, Russian labor laws do not contain a definition of “ non-working days”; the text of the Russian Labor code (“RLC”) uses the term “ non-working public holidays” instead. A broad interpretation of the Decree will lead to the conclusion that the rules applicable to weekends and non-working public holidays are to be applied next week.
It should be noted, that if certain requirements are met it is allowed to engage an employee on non-working holidays. To do this, the following is required (Article 173 of the RLC):
- Get the employee’s written consent;
- Consider the opinion of the elected body of the primary trade union organization (if any).
If all the above requirements are met, the employee can be engaged in work, while work on a non-working holiday is paid at least twice under Article 153 of the RLC. At the request of an employee who worked on a non-working holiday, he or she may be granted another day of rest.
At the same time, the opposite point of view is held by the Russian Ministry of labor. In its recent recommendations due to the Decree (“Recommendations”)2, the Ministry specifies that a non-working day does not refer to weekends or non-working holidays, so payment is made in the usual, and not an increased amount. It is worth mentioning that these recommendations regarding payment are not issued in the form of any statutory enactment.
Now let’s take a closer look at some of the organizations that the Decree makes an exception to:
1. Continuously operating organizations
The definition of continuously operating organizations is mentioned in article 113 of the RLC and implies organizations that cannot suspend work due to production and technical conditions. Laws and explanations of state authorities do not allow us to make a clear conclusion as to which organizations are continuously operating and whether there are more detailed criteria for recognizing an organization as a continuously operating one.
2. Medical and pharmacy organizations
We believe that when choosing these terms, the President was guided by the provisions of the Federal law “On the circulation of medicines”, according to which:
- Medical organization — an organization that performs medical activities under a license.
- Pharmacy organization — an organization engaged in the retail sale of medicines, storage, transportation, manufacture and distribution of medicines for medical use
3. Organizations that supply the population with food and goods of prime necessity
While everything is clear with food, concerns are raised by the “goods of prime necessity” term, which is not defined in Russian legislation. There is a List of certain types of socially important food products of prime necessity that can be subject to maximum acceptable retail prices ("List")3, which includes 24 items of certain types of food (for example, buckwheat, potatoes, vermicelli, etc.), which can be indirectly understood as goods of prime necessity. At the same time, the List itself, based on its name, is not an exhaustive list of goods of prime necessity.
There are also no specific explanations for non-food goods of prime necessity. On March 26, the Mayor of Moscow issued a decree4 defining a list of non-food goods of prime necessity that includes 21 items (e.g., hand sanitizers, sanitary masks, automobile gasoline). Thus, it can be assumed that the list of goods of prime necessity can be further defined at the federal or regional levels.
The Russian Ministry of industry and trade provided some explanations regarding the Decree’s application. In its letter to pharmaceutical companies,5 the Ministry drew attention to the fact that medicines for medical use and medical devices are socially important products used for medical purposes and are necessary for the prevention, diagnosis and treatment of human diseases, so pharmaceutical companies are considered as life-support structures and must ensure uninterrupted production.
Besides, there are no specific instructions in the Decree as to whether it is possible to apply the exception towards only a group of the employees in the listed organizations. Thus, following the Decree’s provisions, the week from March 30 will be a working (or a non-working) week for all employees of such organizations, regardless of their type of activity. At the same time, the Recommendations have the opposite thesis that the directors of such organizations independently determine the lists of their employees — those for whom non-working days are introduced, and those who continue to work. It is not clear on what basis the Ministry of labor came to this conclusion.
To sum up, the Decree leaves many questions about its practical application. Since some of the terms used in the text of the Decree are not legally defined, there are many factors that the companies will need to consider when deciding whether to work next week or not, whereas state bodies interpret the Decree at their discretion.
1 http://www.kremlin.ru/events/president/news/63065
2https://rosmintrud.ru/docs/1368
3Approved by Decree of the Russian Government No. 530 of July 15, 2010
4Decree of the Mayor of Moscow No. 31-УМ of March 26, 2020
5Letter of the Russian Ministry of industry and trade No. 21011/19 of March 26, 2020