As many of you already know, yesterday, 25 March 2020, the Russian President issued a Decree announcing non-working days in Russia1 (the “Decree”): 30 March to 3 April 2020, with employees retaining their salaries. Yet many of the Decree’s wordings have raised questions within the business community. Answers to these are crucial for deciding how companies will be operating in this period.
What is a “continuously operating organisation”?
The Decree states that it does not cover employees of “continuously operating organisations”, without defining this concept. Neither laws nor official clarifications nor judicial decisions provide a complete understanding as to which organisations are continuously operating ones and what the criteria are for deciding this.
Within the meaning of article 113 of the Russian Labour Code, a continuously operating organisation is one whose operations cannot be suspended for production and technical reasons. In other words, if its operations are halted and then resumed, this would entail obviously disproportionate costs.
What is meant by “non-working days” and how should they be viewed?
The Russian Labour Code features “Public holidays” and “Weekends” but not the concept of “non-working days” mentioned in the Decree.
We believe that, in order to understand the legal nature of the “non-working days” introduced by the Decree but not directly regulated by law, one should refer to the provisions of employment laws concerning weekends and public holidays.
Importantly, the Russian Labour Code regulates work during weekends and on public holidays in the same way. In particular, an employee may be engaged to work on a weekend day or a public holiday:
only in cases listed in the Russian Labour Code;
only subject to the employee’s consent;
in line with the procedure set out in the Russian Labour Code (with the trade union organisation’s opinion taken into account);
with double pay or an additional day of rest provided.
What is the purpose of the Decree and why is it important?
The Decree’s preamble states expressly that its aim is to ensure public sanitary and epidemic safety. Regulation of employment arrangements comes second here.
So, in order to decide how work should be organised from 30 March to 3 April 2020, whether your company is a continuously operating organisation, whether any of the exclusions prescribed by the Decree are applicable to it and whether it is admissible and advisable to engage employees to work on the newly introduced “non-working days”, it should be understood that the Decree’s purpose is not to provide employees with additional rest or financial support. What it aims to do is prevent spread of the coronavirus. So the non-working days set from 30 March to 3 April are not a socially orientated step but a sanitary and anti-epidemic measure.
This means that, if a company and its officials fail to comply with the Decree’s provisions and this has grave consequences (causing harm to human life and health or an epidemic), they may be held liable for violating the sanitary and anti-epidemic rules and measures rather than for breaching the employment laws.
As a reminder, the current Russian administrative and criminal legislation provides specifically for liability for violating sanitary and anti-epidemic requirements and measures (e.g., art. 236 and art. 237 of the Russian Criminal Code).
Moreover, yesterday, on 25 March 2020, a draft law tightening criminal liability for breaking the sanitary and anti-epidemic rules was submitted to the State Duma (Russian Parliament) . It suggests, in particular, introducing liability not only for actions that have grave consequences but also for those that bring about a threat of mass disease. The draft law makes such violation punishable with up to five years’ imprisonment.
If you have any questions or comments on this news, please feel free to contact us and we will be happy to discuss them.
Bryan Cave Leighton Paisner (Russia) LLP, formerly Goltsblat BLP in Russia, will continue monitoring the situation and keep you informed of any related developments.
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