The COVID-19 pandemic has introduced a new reality in all aspects of personal, social and business life. While such new reality is primarily concerned with restrictions and limitations, it has created new opportunities for labour organisation.
Although widely used in practice for many years, alternative forms of labour organisation (eg, remote working and flexible working arrangements) were not properly addressed in Ukrainian law until 2020 and 2021. Consequently, when implementing such alternative forms of working, employers were always under the burden of risks and other negative implications due to the unregulated and uncertain nature of such arrangements. Among the key issues were:
- labour safety (as employers remained fully liable for remote workers' labour safety – even if they worked from a café or a location other than their home residence); and
- employers' inability to effectively control and properly discipline employees working on remote or flexible schedules.
Another issue was the inability of the labour laws to promptly and effectively address emergency situations. Until recently, any unilateral change of employment terms and conditions by employers required two months' prior written notice to employees. Thus, unless employees cooperated, employers were unable to legitimately switch them to remote working regimes on short notice – even if such measure was driven by employee safety considerations.
This situation negatively affected employers when the COVID-19 outbreak began in 2020. The beginning of the pandemic was a challenge for the entire labour community, which was not ready to face such disruption safely. Luckily, Parliament reacted quickly and in mid-2020 Ukraine underwent a labour reform, which was finalised in February 2021. The labour reform has brought the desired clarity and legal comfort with regard to distance working and alternative working arrangements.
The law now establishes three working arrangements as alternatives to the classic office model:
- flexible working arrangements;
- remote working arrangements; and
- home-based working arrangements.
The sections below summarise the key features of the three new working arrangements. Accordingly, employers now have a set of effective tools to properly address the need for alternative labour organisation. Employers can select a particular arrangement depending on their needs and the job function. Notably, each of the three arrangements allow immediate unilateral implementation in emergency situations, including a pandemic. Further, for the arrangements that take place outside of employers' premises (ie, for the remote and home-based working arrangements), the responsibility for labour safety is on employees, while employers' responsibilities are limited to the safety of the equipment and devices procured by them. Nonetheless, in all cases, employers are still responsible for the delivery of labour safety training to employees – with the frequency set out by law (normally this is every six months). For remote and home-based working arrangements, the law now allows such training to be conducted online.
As the novelties are fresh, the application of these arrangements in practice is still being formed. Employers should implement effective systems for setting work tasks and monitoring employee performance in these new distanced arrangements.
Description
Flexible working is a labour arrangement which allows for the establishment of a working regime that is different from the one established by companies' internal labour rules.
Flexible working is most applicable to office workers who must spend at least some time in the office (eg, accountants, HR employees and personal assistants). However, it can also be used in other spheres of work (eg, office support staff, drivers, cleaners and couriers), subject to proper coordination with other employees' work schedules.
Workplace location
Flexible working takes place in employers' offices.
Allocation of working time
Flexible working allows employees to have flexible working hours, including with regard to the time that they start and finish their working day.
Employees' overall working hours must be within the normal statutory limitations for the duration of work (eg, the established daily or weekly norms).
Implementation formalities and notice period
Flexible working can be implemented:
- by mutual consent of the employer and the employee (at any stage of the employment). A written labour agreement or another written instrument is required in this case;
- unilaterally by employers due to a pandemic, a war or another extraordinary situation by the employer's written order notified to the employee within two days of its issuance. A written labour agreement is not required in this case; and
- unilaterally by employers due to business needs. This is subject to two months' prior written notice to employees, but a written labour agreement is not required.
Modification and cancellation
Employers may unilaterally reinstate (including immediately) the standard (non-flexible) working regime:
- due to business needs or emergency situations (for no longer than for one month during one year); and
- as a disciplinary measure for an employee's violation of the agreed flexible working schedule.
Duration
Flexible working will apply for the period agreed by the employer and the employee.
However, during a pandemic, a war or another extraordinary situation, employers can decide for how long flexible working will apply.
Remuneration, benefits and guarantees
These are the same as for office-based employees.
Responsibility for the provision of work equipment and devices
Employers are responsible for providing employees with work equipment and devices during flexible working arrangements.
Responsibility for labour safety
Employers are responsible for labour safety during flexible working arrangements.
Employees' liability for violating the agreed working schedule
If employees violate the agreed working schedule, employers may immediately reinstate the standard (non-flexible) working regime. The standard disciplinary liability will also apply to employees.
Employees' liability for damages caused to employers
Employees' liability in this regard is limited (usually limited by one times their monthly salary). However, exceptions apply.
Description
Remote working is a labour arrangement which allows employees to work outside of their employer's premises – namely, at any place of the employee's choice and with the use of information and communication technologies.
Remote working is prohibited for hazardous works.
Remote working is most applicable to office workers whose job specifics allow the delivery of results outside of the office premises and without a link to any specific workplace (eg, consultants, translators and web designers).
Workplace location
Remote working occurs outside of employers' premises, at any place of the employee's choice (including in cafes and on the go) and with the use of information and communication technologies.
The parties may still agree that some part of the work can be performed at the employer's premises.
Allocation of working time
Under remote working arrangements, the allocation of working time is at employees' discretion. Unless otherwise agreed in a labour agreement, employees are not bound by their employer's general working schedule.
Employees are eligible to an 'offline period', the duration of which must be reflected in the labour agreement. Employers' inability to reach employees during the agreed offline period will not constitute a breach of the employment terms and conditions by the employee.
Employees' overall working hours must be within the normal statutory limitations for the duration of work (eg, the established daily or weekly norms).
Implementation formalities and notice period
Remote working can be implemented:
- by mutual consent of the employer and the employee (at any stage of the employment). A written labour agreement is required in this case;
- unilaterally by employers due to a pandemic, a war or another extraordinary situation by the employer's written order notified to the employee within two days of its issuance. A written labour agreement is not required in this case; and
- on an employee's demand if they have become the subject of discrimination or harassment at work (the employee must provide facts of such treatment) on temporary basis, for up to two months. A written labour agreement is not required in this case. Employers can refuse such demand if the employee's job cannot be performed remotely or if no evidence of discrimination or harassment have been provided.
Protected categories of employee (ie, pregnant employees, nursing employees, parents of two or more children under the age of 15 or parents of children with disabilities, including adopted children) may insist on establishing a remote working regime where practically possible.
Modification and cancellation
Remote working arrangements can be modified or cancelled on mutual consent of the employer and the employee.
Duration
Remote working arrangements will apply for the period agreed by the employer and the employee.
However, during a pandemic, a war or another extraordinary situation, employers can decide for how long remote working will apply.
Remuneration, benefits and guarantees
These are the same as for office-based employees.
Responsibility for the provision of work equipment and devices
Employers are responsible for providing employees with work equipment and devices during remote working, unless otherwise agreed between the employer and the employee.
Responsibility for labour safety
Employees are responsible for labour safety during remote working arrangements.
Employers' responsibility for labour safety is limited by the work equipment and devices, if any, procured by them.
Employees' liability for violating the agreed working schedule
If employees violate the agreed working schedule, the standard disciplinary liability applies (same as for office-based employees).
Employees' liability for damages caused to employers
Employees have full liability for damages to or loss of equipment and devices procured by their employer.
Employees have limited liability with regard to other aspects. However, exceptions apply.
Home-based working arrangements
Description
Home-based working is a labour arrangement which allows employees to work at their place of residence or another fixed and respectively equipped workplace as agreed with their employer. Such fixed workplace must be appropriate for the delivery of the employee's work or services as per the employer's statutory type of activity (eg, baking or car servicing).
Home-based working is most applicable to craft workers.
Workplace location
Home-based working takes place outside of employers' premises, at employees' place of residence or another fixed and respectively equipped workplace as agreed with their employer.
Employees must agree any changes to their fixed workplace with their employer.
Allocation of working time
The working regime (eg, working hours) is the same as for office-based employees, unless otherwise agreed between the employer and the employee.
Employees' overall working hours must be within the normal statutory limitations for the duration of work (eg, the established daily or weekly norms).
Implementation formalities and notice period
Home-based working can be implemented:
- by mutual consent of the employer and the employee (at any stage of the employment). A written labour agreement is required in this case; and
- unilaterally by employers due to a pandemic, a war or another extraordinary situation by the employer's written order notified to the employee within two days of its issuance. A written labour agreement is not required in this case.
Protected categories of employee (ie, pregnant employees, nursing employees, parents of two or more children under the age of 15 or parents of children with disabilities, including adopted children) may insist on establishing a home-based working regime where practically possible.
Modification and cancellation
Home-based working arrangements can be modified or cancelled on mutual consent of the employer and the employee.
Duration
Home-based working will apply for the period agreed by the employer and the employee.
However, during a pandemic, a war or another extraordinary situation, employers can decide for how long home-based working will apply.
Remuneration, benefits and guarantees
These are the same as for office-based employees.
Responsibility for the provision of work equipment and devices
Employers are responsible for providing employees with work equipment and devices during home-based working arrangements, unless otherwise agreed between the employer and the employee.
If employees provide their own work equipment or devices, employers must reimburse them.
Responsibility for labour safety
Employees are responsible for labour safety during home-based working arrangements.
Employers' responsibility for labour safety is limited by the work equipment and devices, if any, procured by them.
In addition, employers are responsible for checking whether employees' fixed workplace is appropriate for the delivery of the respective work or services as per the employer's statutory type of activity (eg, baking or car servicing).
Employees' liability for violating the agreed working schedule
If employees violate the agreed working schedule, the standard disciplinary liability applies (same as for office-based employees).
Employees' liability for damages caused to employers
Employees have full liability for damages to or loss of equipment and devices procured by their employer.
Employees have limited liability with regard to other aspects. However, exceptions apply.
