Remote work: changes in legislation

In early February 2021, the Verkhovna Rada of Ukraine adopted a law amending labor legislation. The main changes concern remote work. The document has already been signed by the president. Amendments have been made to the Labor Code and the Law "On Occupational Safety."

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Last year, the COVID-19 pandemic triggered a sudden, massive shift to remote work for many companies. According to statistical research, more than 35% of employees were transferred to home work. Most of them continue to work remotely today.

Remote work, long reserved for certain industries (such as IT professionals), is now being adopted across many business sectors. And there's every reason to believe its adoption will only increase over time.

The issue of regulating remote work was raised repeatedly in Verkhovna Rada committees in 2020. Circumstances demanded it, but there was no clear position on the matter. Finally, a bill has been drafted that regulates a modern way of organizing labor relations between employees and their employers. What will change?

Electronic communication between employees and the company is a must!

Until now, it was believed that only written communication—delivering a document or signing a receipt—was the only correct and safe means of communication (given the legal risks). In today's world, this approach is outdated. Therefore, instructions, orders, and so forth, communicated electronically, are now considered valid. This is a radical step, but it is extremely important.

"Remote" and "home" work: the concepts are distinguished

Remote work is defined as work performed outside the employer's premises. Employees can choose their preferred location to perform their work using information and communication technologies.

Home work is work performed at the employee's place of residence or at another location at a specific, clearly stated address.

There is one more important difference:

• Home-based workers are subject to the general work schedule established by the employer. For example, from 9:00 AM to 6:00 PM, Monday through Friday, with a lunch break. But only if (and this is very important) otherwise specified in the employment contract.
• An employee working remotely is given the right to independently manage his or her time.

The conditions for remote/home work must be specified in the employment contract.

If necessary (for example, to ensure employees self-isolate due to the threat of a pandemic), company management can transfer some (or all) employees to a different work arrangement: home-based or remote. This is subject to the company's type of business, of course.

In such a force majeure situation, concluding a new written contract with employees is not required. The company simply publishes an order on its official website, which the employee must review within two days of receiving notification of such changes. Important: this must occur before remote/homeworking is implemented.

With regard to remote workers, our conservative labor legislation has taken a revolutionary step, without exaggeration: an employee can disconnect all forms of communication with the employer for a specified period of time. The duration of this disconnection period must be specified in the remote work agreement. If the employee is "unavailable" during this period, this will not be considered a failure to perform work duties or a violation of the employment contract.

Certain categories of employees have the right to request that their employer transition them to remote or home-based work. This is subject to the specific industry's requirements and the employer's availability of the necessary resources and funds.

An employee performing work outside the office is responsible for compliance with occupational safety regulations.

Until now, responsibility for ensuring safe and healthy working conditions has been placed on the employer. Under the new reality, this responsibility shifts to the employee if they work remotely or from home.

However, at the same time, responsibility for the safety of equipment and tools provided to employees for remote and home-based work remains the responsibility of the employer.

The law does not clearly define financial liability for the use of provided equipment for work duties. However, it is permissible to enter into an agreement with employees working under an employment contract regarding full financial liability. It is likely that this refers to liability for the loss or damage of equipment or tools provided for work.

Due to discrimination, you can switch to remote work

An important innovation concerns discrimination. If an employee proves to management that they have been subjected to discriminatory behavior, they have the right to request a temporary transfer to remote work for up to 60 days.

The employer may refuse to comply with this request if it is not possible to perform the work remotely or if there is no reasonable evidence of discrimination.

In our country, practices for combating bullying at work have not yet been established, so the practical application of these declarative statements is quite problematic.

Changes to the regulation of labor issues related to remote work are relevant and important. This is a necessary foundation for legally resolving issues of interaction between employers and their employees, who, in many cases, have formally been working this way for quite some time.

To ensure proper legality, employees and employers must amend existing employment contracts or sign new ones in accordance with legislative amendments. The new law is the first step toward translating such employment relationships into proper legal terms.