Federal Law No. 407-FZ dated December 8, 2020 made material amendments to the section of the Labor Code of the Russian Federation which regulates distance work. The necessity for such amendments became evident as soon as employers started to switch their staff to work from home in large numbers at the beginning of 2020. After almost a month and a half of a stay-at-home period, the demand for such amendments appeared not only on the part of citizens but also on the part of the government. As it was partly the absence of regulatory mechanisms for switching to remote work and the absolute absence of its control that caused a stay-at-home period.
In fact, the distance work concept existed in the previous version of the Labor Code but only those employees who concluded a special distance employment agreement were considered distance employees. More complicated rules were applied to them because the remote work format supposed fewer possibilities for direct staff control. Thus, the mechanisms allowing an employer to control its distance employees included the exchange of electronic documents (even with the use of digital signature) and additional grounds for dismissal (for example, failure to contact within four hours without notification) which were specified in the employment agreement and varied depending on the employer's strictness. Now it is impossible for the majority of both employees and employers to comply with such strict rules because of the mass character of this phenomenon.
Now we do not have the definition of a distance employee in the meaning intended previously. The legislator combined the concepts of the distance and remote work. This is what was done.
Distance Work Definition
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Before
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After
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The distance work shall mean the performance of job functions determined by the employment agreement away from the employer's location
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The distance (remote) work (hereinafter, the distance work, the performance of job functions remotely) shall mean the performance of job functions determined by the employment agreement away from the employer's location
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The distance employee shall mean any person who concluded a distance employment agreement
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An employment agreement or a supplementary agreement to such employment agreement may specify the performance by the employee of its job functions remotely on a permanent basis (within the term of the employment agreement) or on a temporary basis.
For the purposes of this section, the distance employee shall mean any employee who concluded an employment agreement or a supplementary agreement to such employment agreement
and any employee who performs its job functions remotely in accordance with the internal policies and procedures adopted by the employer.
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The legislator extended the concept of distance work. Now the distance worker shall mean not only any person who concluded a distance employment agreement but also any person who concluded a supplementary agreement to a standard employment agreement. That is, now the staff switch may be formalized by an ordinary supplement, without any new employment agreement. In addition, distance work may be temporal. An employee is supposed to spend one part of working time at the office and the other part – at home.
They also excluded a large message from Article 312.1 of the Labor Code dedicated to the exchange of information and documents (including staff documents) between an employer and its employee.
Peculiarities of Agreement Execution
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It may have been concluded by exchanging electronic documents. In this case, the employer's location was indicated as the place of an employment agreement.
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It may be concluded by exchanging electronic documents between an employer and its employee (any incoming employee) according to the procedure provided by Part 1, Article 312.3 hereof (an all-new article).
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If a distance employment agreement is concluded by exchanging electronic documents, the employer shall send to a distance employee a hard copy of such properly executed employment agreement by registered mail with delivery notification not later than three calendar days from the conclusion date of such employment agreement.
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Upon a written application of any distance employee, the employer shall send to such distance employee a hard copy of a properly executed employment agreement or a supplementary agreement to such employment agreement not later than three business days from the receipt date of such application.
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There are no material amendments here – they are related only to the employment agreement form (there was a separate agreement before which is not required now). It is worthy of note that earlier an employer was obliged to send to an employee its copy of the employment agreement by registered mail, and now it can be done only upon the employee's desire and the way of dispatch is left to the discretion of the parties. It is unclear yet how to settle possible disputes about the existence of labor relations or an agreement with an employer for distance work, as well as what to do if the selected way of dispatch does not provide the receipt of the employment agreement copy.
Procedure for Parties Interaction
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Enhanced digital signatures were used when concluding agreements;
Other issues were fully regulated by a distance employment agreement.
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The use of digital signatures was introduced when concluding employment agreements (non-certified digital signatures may be used to relax the rules for employees);
In other cases, an exchange of scanned copies is possible if it is provided by the collective agreement or internal policies and procedures of the employer;
If scanned copies are used, each of the parties shall inform of their timely receipt within the period of time provided by the collective agreement or internal policies and procedures of the employer;
In specific cases, the parties shall exchange hard copies sent by registered mail.
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The legislator tried to specify in the Labor Code the provisions against the employer's misbehavior which could stipulate the labor conditions next to impossible. In fact, the legislator only made things harder both for an employer and an employee: these provisions in the main were included in employment agreements but there was a possibility to adapt them to the capabilities of every employee.
Working Hours and Work-Off Time
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At the employee's discretion unless otherwise provided by the employment agreement
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Specified in collective agreements, internal policies and procedures, employment agreements. The procedure for requesting an employee to appear in the office may also be provided by these documents;
The procedure for granting leave is also specified in these documents;
The time of interaction between an employer and a distance employee shall be considered as working time.
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Generally, there are no material amendments – the legislator has just determined that working hours may be specified not only in employment agreements. As a matter of experience, employers have already referred to their internal policies and procedures in employment agreements and distance employment agreements and have not established any specific rules for distance employees.
Termination of the Employment Agreement
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On the common grounds and on the grounds provided by the employment agreement
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On the common grounds and on the grounds provided by the Labor Code:
- if an employee fails to interact with the employer without an acceptable reason regarding any issues connected with his job functions for more than two consecutive business days from the date of the relevant request from the employer;
- if an employee has changed the location of performance of his job functions to the extent that it makes it impossible for such employee to perform his obligations under the employment agreement on the same terms and conditions (for employees who worked remotely on a permanent basis).
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The amendment is positive for employees but negative for employers. As most employers having distance employees controlled them by making entries about the work performed into special reporting systems, many employees were dismissed because of incorrect information provided to the employer. Now it will be also possible (under Par. 5, Part 1, Article 81 of the Labor Code) if the provisions about distance work or performed work reporting are prepared correctly, but the procedure itself will become more complicated. The prospects of previous employment agreements which contain additional grounds for employee dismissal remain unclear. As the list is exhaustive and the employer may not include such provisions in the employment agreement now, it is possible that in case of a dispute the court will declare such provisions invalid.
Additional Guarantees
The legislator has also introduced additional guarantees for employees:
1. Distance work may not be the ground to reduce salary;
2. The employer shall be responsible for technical and material support of the employee with all tools necessary for work (but the employee may use his own tools with the employer's approval);
3. If the employee uses his own tools, the employer shall pay him compensation for their use. The procedure and amount of compensation shall be specified in the collective agreement, internal policies and procedures, or the employment agreement;
4. If the distance employee is sent on a business trip, the business trip provisions shall be applied to such employee;
5. All employee safety requirements and the employer's duty to provide employee safety shall be also applied to distance employees.
These guarantees have already been observed in respect of distance employees (through the general provisions of the Labor Code and references to the relevant internal policies and procedures included in employment agreements) but the legislator decided to cover all bases and curtail all possible abuses. These amendments can be considered as positive in view of protection of distance employee rights.
Procedure for Temporary Switch to Distance Work on the Employer's Initiative
In case of a new lockdown or any other emergency, the legislator decided to regulate the procedure for switching employees to remote work, if it has to introduce a stay-at-home period once again. Article 312.9 of the Labor Code specifies the cases when the employer may switch its employees to temporary distance work without their consent. The list of situations is exhaustive but the provisions such as "any industrial accident, accident at the production site" and "in any exceptional circumstances which put at threat the life or normal living conditions of the whole population or of its part" can be construed in such a way as to switch employees to remote work quite often (at least during strong frost or when it is too hot in summer).
Within the period of such forced distance work, all rules of temporary distance work shall be applied to and all guarantees shall be provided to such employees. A switch to distance work shall be formalized by specific regulation of the employer where it shall specify the grounds for and the period of such switch, a list of employees switched to distance work, the procedure for material and technical support of such employees, the procedure for their labor arrangement, and any other provisions related to their labor arrangement. The amendments shall not be made to the employment agreement. Such employees may be well-informed with this regulation by any means which allows them to reliably ascertain its receipt.
If the specific character of work does not suppose remote work or if the employer cannot provide it (work at the production site, work with access to state secrets, etc.), all the time when employees cannot perform their work shall be considered as a shut-down for the reasons beyond the control of the employer or employees.