New remote work regulations from 1 January 2021

The Federal Law dated 8 December 2020 No. 407-FZ (hereinafter, the “Law”) amends the Labour Code of the Russian Federation considerably through changes in regulation on remote work. Below are the main changes brought by the Law that will enter into force on 1 January 2021.

Types of remote work

Apart from permanent remote work covered by the Labour Code of the Russian Federation the Law also addresses:

  • Temporary remote work (for up to 6 months);
  • Periodic remote work (with alternating periods of work in the office and outside the office);
  • Temporary remote work mandated by the employer (in case of epidemics or other extraordinary circumstances).

In the first two cases remote work is formalised by including appropriate conditions in the employment contract with the employee. Where there is an existing employment contract, the conditions for remote work are laid out in an addendum to the latter. The conditions and procedures for the introduction of temporary remote work in exceptional cases are considered in more detail below.

Introduction of temporary remote work in the event of an epidemic and extraordinary circumstances

The Law introduces a new article (312.9) to the Labour Code of the Russian Federation, which provides that the employer has the right to temporarily transfer employees to remote work in case of a disaster, industrial accident, epidemic or other extraordinary circumstances (force majeur). In this case:

  • The employees’ agreement or consent to remote work and ensuing amendments to the employment contract are not required;
  • The employer provides employees temporarily transferred to remote work with the necessary equipment, software and hardware, information security and other means to fulfill their tasks. Alternatively, pays compensation to employees for the use of equipment and facilities owned or leased by them;
  • The employer drafts an internal regulation on the temporary transfer of employees to remote work and ensures they are familiarised with it;
  • The employees temporarily transferred to remote work remain subject to the labour protection rules laid out in the Labour Code of the Russian Federation in relation to the permanent remote work;
  • When the extraordinary circumstances that served as grounds for the transfer to remote work are over, the employer returns the employees to their previous jobs.

Where the specifics of the tasks do not allow the transfer of employees to remote work, or the employer cannot provide employees with the equipment and means necessary to carry out their jobs, the time during which the employees cannot perform their work is considered downtime for force majeur: reasons beyond the control of the employer and the employee.

Supply of equipment and reimbursement of employee expenses related to remote work

Article 312.6 of the Labour Code of the Russian Federation, introduced by the Law, requires that the employer provides employees working remotely with equipment and other means necessary for the performance of their contractual duties. If employees are required to use their own equipment or facilities or equipment and facilities leased by them, the employer shall compensate them appropriately, as well as reimburse any other costs associated with their use. The procedure, terms and amount of the compensation and reimbursements is determined in the collective agreement, internal regulation or employment contract.

Electronic document flow

The new version of article 312.3 of the Labour Code of the Russian Federation allows, in specific cases, the use of an enhanced qualified electronic signature in electronic document flows. The electronic signature should be used when concluding, amending or terminating:

  • Employment contracts (including addenda);
  • Material liability agreements;
  • Apprenticeship contracts.

In other cases, the Labour Code of the Russian Federation allows the employer to use a different type of electronic signature, and choose other methods of electronic interaction that record receipt by the employee and the employer in electronic form.

The latter system needs to be determined in the collective agreement, internal regulation or employment contract. In our opinion, interaction through corporate e-mail (using a simple electronic signature in the form of a username and password, or an internal corporate portal with personal authorisation by employees, etc.), is acceptable.

Remote working regime

The new version of article 312.4 of the Labour Code of the Russian Federation allows the working regime for remote employees to be determined in the employment contract (as it is currently established), in the collective agreement or the employer’s internal regulation.

As before, the new version of the article notes that if the working regime is not determined, the remote employee is entitled to set it at their discretion.

Regarding temporary remote work, article 312.4 of the Labour Code of the Russian Federation establishes the procedure for requiring an employee to return to the office. This procedure should be established in the collective agreement, internal regulation or employment contract.

The article also states that interaction time between the remote employee and the employer is included in working hours. This clarification should be taken into account to avoid possible overtime claims by the employee.

Grounds for termination of an employment contract with a remote employee

Previously, the Labour Code of the Russian Federation foresaw a number of grounds for termination of the remote work agreement in the employment contract (article 312.5 entered into force on 31 December 2020). Article 312.8, introduced by the Law does not contain the latter but lays out the following new grounds for termination of the employment contract:

  • Where the employee does not interact with the employer, without a valid reason, on matters relating to their function for more than two working days from the date of receipt of a request from the employer (except for cases where a longer period for interaction is given by the employer);
  • Where the employee changes their remote working location, entailing the inability to perform their duties under the terms of their employment contract.

These grounds are laid out in the Labour Code of the Russian Federation and, therefore, do not need to be explicitly stated in the employment contract.

The terms for sending a written notice of dismissal have also changed, where it is notified electronically. Previously the dismissal notice needed to be sent on the day of termination of the employment contract (article 312.5 entered into force on 31 December 2020). From 1 January 2021, the employer will have three working days to notify dismissal (article 312.8 as amended by the Law).

Mazars' team of lawyers is always ready to provide their clients with more detailed advice on legislative changes, as well as support in drafting the necessary documents.

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