The Parliament of Ukraine passed the Law No. 1213-IX on remote work and homeworking amending the Labour Code of Ukraine. The amendments were finally promulgated, published and came into force on 27 February 2021.
Please see below an overview of the respective amendments.
Differentiation between homeworking and remote work
The previous provisions of the Labour Code of Ukraine did not clearly differentiate between homeworking and remote work. The amendments cure this flaw and legally distinguish these two separate modes of work.
Homeworking is understood as work performed by an employee in his or her home or other fixed or defined place outside the employer’s office (premises) and with assigned tools or equipment. The employee cannot change the fixed workplace and move to work to in another place without the employer’s prior consent. The employer can decide on its own how to assign work tasks to employees, monitor their progress and ensure proper recording of performing work.
In contrast to homeworking, remote work foresees that an employee can work outside the employer's premises at any place of their choice by using information and telecommunication technologies; i.e., the employee does not have a fixed or defined workplace. Consequently, no employer’s consent is required to change the workplace. In addition, remote work can be combined with work in the office (blended working), if the parties agree to this option in the employment agreement.
The amendments reflect the existing general rule requiring the execution of a written employment agreement about homeworking or remote work, which presumes the employee’s consent in order to be employed under or transferred to one of those work schedules. The Ministry of Social Policy is authorized to approve standard forms of homeworking and remote work agreements, which must be used by employers. They will be mandatory if an employer decides to transfer its employees to home-based or remote work permanently, i.e. outside the (current) emergency context. The standard forms are expected to be approved within three months after the publication of the law, by 27 May 2021.
Exception for emergency situations
Furthermore, the new law keeps the existing legal approach to emergency situations. Thus, if there is a threat of the spread of an epidemic, pandemic, a threat of a natural or man-made disaster, a military or another threat, or if an employee is required to self-isolate as provided by law, the employer may introduce and cancel a work-from-home or remote work schedule unilaterally, i.e., through issuing an internal order (a written agreement is not required in this case but can be executed voluntarily in addition to the order). Such an internal order shall be brought to the attention of the employees concerned within two days after its issue before the beginning of homeworking or remote work. Transferring employees to one of these schedules is considered only a temporary measure and may not exceed the duration of the said justifying emergency circumstances.
Considering the emergency nature of the circumstances, the new law does not require the employer to follow the standard procedure of changing essential working conditions, which would otherwise apply outside of an emergency context. I.e., the employer has neither to additionally justify the transfer nor to notify the affected employees at least two months in advance.
The amendments address issues of labour safety for homeworking and remote work modes and remove the existing uncertainty in this area. In both cases, employees shall be themselves responsible for safe and healthy working conditions at their place of work. The employer, in its turn, is responsible for the safety and proper technical condition of equipment and tools provided to employees for remote or home-based work. Moreover, the employer is obliged to regularly instruct its employees on the safe use of the provided equipment and tools.
Unless the employment agreement provides otherwise, a homeworker shall be bound by the employer’s general working hours and labour regulations. An employee working remotely can, in contrast, organise and distribute their working time on their own, and the employer’s internal labour regulations do not apply unless the employment agreement stipulates otherwise.
Right to disconnect
Employees working remotely (but not home workers) shall be provided a guaranteed time to disconnect (leisure time) when those employees can turn off any means of communication with the employer. This shall not be considered a violation of the employment agreement or labour discipline. The period of leisure time for rest (period of disconnection) shall be defined in the employment agreement on remote work (or, absent such agreement in emergency context, in a respective employer's order).
The employer shall provide its employees with the equipment, tools, and materials necessary for performing labour duties at home or remotely, unless the parties agree otherwise in their written employment agreements. The parties shall set out all relevant regulations regarding the provision and use of work equipment, tools, materials, as well as compensation of the employee’s work-related expenses in their agreements (or, absent such agreements in emergency context, the employer includes respective provisions in its order).
Employees working from home or remote shall bear full material liability toward the employer for the equipment, tools, and materials provided by the employer for the performance of their labour duties (the parties can execute a so called written ‘agreement on full material liability’). As opposed to this, the current general rules limit the extent of material liability to an employee’s average monthly salary (regardless of the actual extent of damage).
Special entitlements to remote or homeworking
Certain employee categories can be entitled to request the employer to transfer them to a remote or the homework schedule if it is compatible with the performed work and the employer has requisite resources and means. These categories include (i) pregnant women; (ii) employees with a child under 3 (6 – if the child requires special care) years of age – until the child attains that age; (iii) employees who have two or more children under the age of 15 or a child with a disability; (iv) employees who constantly care for people with certain disabilities.
Employees who have been subjected to discrimination in their workplaces can request a temporary transfer to remote work – for up to two months. However, the employer can decline such a request if the employee has not provided sufficient evidence of discrimination or harassment against them.
To summarise, the new law at remote work and homeworking provides for detailed rules on homeworking and remote work schedules and brings some clarity and legal certainty in employer-employee relations in those specific situations, both in the context of the Covid-19 pandemic and thereafter.
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