Employee Is Unable to Be in the Workplace due to War: How to Organize Labor Relations

Since the beginning of the war, employers have faced many issues related to the employment relationship with their employees. More and more cases of an employee unable to go to work for one reason or another are arising, especially if such employee resides in a hostilities zone. We are discussing below how to regulate the absence of the employee, without violations of the labor law.

The Ministry of Economy clarified that in case of impossibility of the employee to come to work, there are the following options for the regulation of labor relations:

1) Remote work if an employee has the opportunity to continue to work remotely

According to part one of Article 602 of the Labor Code of Ukraine, remote work is a form of labor organization in which work is performed by an employee outside the work premises or territory of the owner or their authorized body, anywhere at the choice by the employee and using information and communication technologies.

According to part 1 of Art. 2 of the Law of Ukraine “On Organization of Labor Relations during Martial Law”, for the period of martial law, the parties shall agree to determine the form of a labor contract.

The Ministry of Economy notes that the parties are not prohibited from using a standard form of the labor contract for remote work approved by its order of May 05, 2021 No. 913-21 “On Approval of Standard Forms of Labor Contracts for Home-Based and Remote Work”.

According to part 2 of Art. 3 of the Law of Ukraine “On Organization of Labor Relations during Martial Law”, during martial law, the provisions of part 3 of Article 32 of the Labor Code of Ukraine and other laws of Ukraine to notify an employee of changes in significant working conditions shall not apply.

Therefore, transferring an employee to remote work does not require a mandatory 2-month notice of significant changes in working conditions.

Thus, it is possible to transfer an employee to remote work by issuing an order (instruction) with the obligatory acquaintance of the employee with their signature. We also recommend to get an application from the employee to the employer to establish remote work for them. In addition, a separate written labor contract may also be concluded, which provides for remote work.

At the same time, it should be noted that the conclusion of a labor contract for remote work in the presence of dangerous and harmful production (technological) factors is prohibited (Art.  602 of the Labor Code of Ukraine).

It should be noted that, according to the Ministry of Economy, the inability of an employee to perform remote work due to lack of appropriate communications (for example, disconnected electricity or Internet due to hostilities) can not be considered a violation of labor discipline.

The Ministry of Economy recommends that in order to properly organize the performance of remote work and acquaint the employee with orders, notifications, instructions, tasks and other documents of the employer, it is desirable to agree on communication and interaction between the parties during remote work in advance:

– identify electronic means of communication, such as e-mail, telephone number, mobile application, etc.;

– conditions of the employee’s reporting on the work performed (if necessary);

– conditions for notifying the employee of the occurrence of situations that make it impossible to properly perform remote work;

– other conditions for communication and interaction of the parties.

The stated conditions may be agreed in the written labor contract on remote work, if it is concluded.

According to Art. 602 of the Labor Code of Ukraine, an employee who performs remote work shall be guaranteed a period of free time for rest (period of disconnection), during which the employee may interrupt any information and telecommunications with the owner or their authorized body. The period of free time for rest (period of disconnection) shall be determined in the labor contract for remote work.

2) In case of impossibility to perform work remotely, the Ministry of Economy proposes to provide employees with leave:

– paid leave (annual, social), if possible, or

– unpaid leave, which is provided on a mandatory basis (Art. 25  of the Law of Ukraine “On Leaves”), or

– unpaid leave established by agreement of the parties (Art. 26 of the Law of Ukraine “On Leaves”). Such leave during the period of martial law at the request of the employee may be granted without the limitation of the period established by part 1 of Art. 26 of the Law of Ukraine “On Leaves” (part 3 of Art. 12 of the Law of Ukraine “On Organization of Labor Relations during Martial Law”). In other words, such leave may exceed 15 calendar days per year.

3) In case of impossibility of functioning of the enterprise or operation of a separate structural unit, the following options are possible:

3.1. Declaring the downtime. According to Art. 34 of the Labor Code of Ukraine, downtime is the suspension of work caused by the lack of organizational or technical conditions necessary to perform the work, force majeure or other circumstances.

Registration of downtime shall be carried out by drafting the following documents:

– an act of downtime, in which it is necessary to record the circumstances that led to the downtime, the date of downtime, etc.;

– order of the owner or their authorized body, which will contain a list of structural units covered by downtime, if downtime does not apply to the entire enterprise, as well as the start date and, if possible, the end date of downtime or the event related to the end of downtime. Employees are acquainted with the order in the possible way, including by means of electronic communication.

Legal consequences of downtime are as follows:

– payment for downtime is carried out at the rate of not less than two thirds of the tariff rate set for the employee category (salary). Supplemental payment to the level of the minimum salary in case of downtime shall not be carried out (explanation of the Ministry of Social Policy on some issues of remuneration in compliance with the Law of Ukraine of December 06, 2016 No. 1774-VIII “On Amendments to Certain Legislative Acts of Ukraine”). Under the conditions stipulated in the collective agreement, payment for downtime may be made in a larger amount;

– employees may be transferred with their consent, taking into account their specialty and qualification, to another job at the same enterprise, institution, organization for the entire downtime, or to another enterprise, institution, organization, but in the same area, for up to one month.

3.2.  Suspension of a contract

Due to martial law, such a possibility was provided for in Art. 13 of the Law of Ukraine “On Organization of Labor Relations during Martial Law”.

Suspension of a labor contract is a temporary termination by the employer of providing the employee with work and a temporary termination of the employee’s performance of work under the concluded labor contract.

The labor contract may be suspended due to military aggression against Ukraine, which excludes the possibility of providing and performing work. Thus, the Ministry of Economy emphasizes that the main condition for the suspension of the labor contract is the definite impossibility of the employer to provide, and the definite impossibility of the employee to perform the relevant work.

Legal consequences of the suspension of the labor contract are as follows:

– suspension of the labor contract does not entail termination of employment;

– the employer and the employee shall, if possible, inform each other about the suspension of the labor contract in any available way;

– both the employer and the employee may be the initiators of the suspension of the labor contract. The Ministry of Economy recommends that the parties notify each other of the suspension of the labor contract in writing or electronically using technical means of electronic communication;

– reimbursement of a salary, guarantee and compensation payments to employees for the period of suspension of the labor contract is fully borne by the state which carries out military aggression against Ukraine. Therefore, when suspending the labor contract, the employer shall continue to keep records of salaries and compensation payments that would have been due to the employee in the absence of such suspension.

The full text of the explanation of the Ministry of Economy on some issues of labor relations during martial law is available at the link:

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