Andrii Sukhovarov,
attorney
Primary Advisors LLC

Main article
New realities: telecommuting

Competent Thought
The nuances of reorganization, liquidation, merger, division and separation of the enterprise
Part-time employment of employees

Judicial review
Actual positions of the Supreme Court in labor disputes
Labor relations: the latest court practice
The positions of the Supreme Court and their impact on labor relations

Topical
E-labor
Vaccination at the enterprise – the right or obligation of employees

Distance work as a form of work organization has actually existed for many years.
For many years in the form of remote work, and it was legalized only on February 04, 2021 by Law № 1213-IX.
2021 by the Law No. 1213-IX. Amendments to the Labor Code of Ukraine
(hereinafter – the CLL) provided a definition of the term “distant work” and
The definition of the term “distant work” was provided by the amendments to the Labor Code of Ukraine (hereinafter referred to as the CLLU). A number of
peculiarities of this regulation I propose to consider in this article.

Peculiarities of remote operation regulation

  1. The typical form of the contract
    Order of the Ministry of Economy of 05.05.2021 № 913-21 approved, in particular
    The typical form of the labor contract on distant work, which is mandatory
    Prior to use in accordance with Article 60-2 of the Labor Code.
    Removing additions to the labor contract, issuance of internal documents
    of the company to regulate distant work is possible if it does not
    contradicts the law and the conditions of the Model Agreement.
  2. Ensuring safe and harmless working conditions
    Article 60-2 of the Labor Code of Ukraine prohibits conclusion of remote work agreements in case of dangerous and harmful production factors whose classification and criteria are provided in Order of the Ministry of Health of Ukraine No. 248 dd. 08.04.2014 (hereinafter – the Order). According to this Order to dangerous and harmful production factors belong, in particular:
    1) harmful – which are distinguished by degrees of severity;
    2) hazardous – which have a high risk of severe forms of acute occupational injuries, poisoning, mutilation, life-threatening.
    At the same time according to the Order it is possible to determine whether there are hazardous and harmful production factors or not only by the results of relevant certification. Consequently, the question arises how to choose a workplace and ensure safe and harmless working conditions in case of using remote form of labor organization. Since this issue is not regulated in the normative way, the conditions of determination and arrangement of the workplace of an employee who works remotely must be specified in the employment contract.
  3. Conditions for communication with the employer and the use of means of communication For communication between the employee and the employer, transfer of work performed and reports on the stages of its implementation, it is necessary in the employment contract or a separate local act to define certain requirements, in particular the schedule and maximum allowable time of delay for such communication, the terms of reporting and reporting forms, the possibility of unscheduled emergency communication and the like.
  4. Guarantees and compensations
    Legislation guarantees the employee a period of free time, it is advisable to note the criteria of such time: the period, duration and manner of use. During such period, the employee may end contact with the owner or not contact at all, which will not be a violation of the terms of the employment contract. The owner is obliged to provide the employee with everything necessary to perform his/her job duties: equipment, software and hardware, information security equipment, means of communication, Internet, electricity. In the case of failure to provide everything necessary to perform their job duties, the employee is guaranteed compensation for the costs they have incurred to perform the tasks assigned to them (Article 60-2 of the Labour Code). Consequently, the employment contract should define the procedure for calculating and payment of such compensation.
  5. Labor regulations and remuneration
    The owner is obliged to make the employee aware of the internal labor regulations and the collective agreement by the beginning of his work (clause 2 part 1 of article 29 of the Labor Code of Ukraine). In order for an employee to obey the internal work regulations, it must be noted in the employment contract, because otherwise the employee will not obey them. If the employee does not obey the internal labor regulations, the procedure for remuneration of labor needs more detailed regulation in the employment contract, in particular regarding the payment for actually performed work and keeping records of such work.

Distance work can be introduced in such ways:

  1. Employment Contract. As a general rule, it is possible to apply such a form of
    of such form of labor organization as distant work is possible if the employment contract is concluded
    The employment contract is possible if it is concluded in written form in accordance with the typical form (Article 24 of the Labor Code).
  2. An order on distant work without the obligatory conclusion of an employment the contract on distant work in written form. Distant work on the on the basis of such an order can be introduced only:
    – in the case of the threat of an epidemic or pandemic;
    – In of the case of self – isolation of the employee in cases defined by law;
    – In of the case of a threat of armed aggression, an emergency of technogenic, natural nature. 
    The of owner must familiarize the employee with such an order no later than two days from the date of its issuance.
  3. Changes in the material conditions of employment at the owner’s initiative. The owner must notify the employee of the introduction of changes to the material conditions of employment in the form of telecommuting no later than two months before such changes. If the employee fails to agree to such changes, the employment contract is to be terminated in accordance with clause 6 c. 36 of the Labor Code, if the preliminary working conditions cannot be maintained.

Risks for the employer in the case of telecommuting

Changes in legislation regarding the introduction of telecommuting are a positive
steps towards the regulation of this sphere of labor. However, taking into account their
practical application, attention should be paid to certain risks that may
arise:
– Even if additional security measures are specified in the employment contract
For example, additional software, the obligation not to allow third
the workplace and the like, the risk remains that confidential information may be inadvertently acquired by third parties without the consent of the employer.
confidential information to third parties without the employer’s permission. This
may occur through the employee’s reckless choice of the workplace or
leaving the workplace temporarily, failure to use the necessary safeguards
information, etc;
– In the case of failure to establish the condition of obedience to the rules of internal
The employee may face difficulties in regulating the employment relationship.
relations with the employee. Because of this, it is advisable to extend the effect of the internal labor
It is reasonable to extend the effect of the internal labor regulations to remote work as well;
– insufficient regulation and control over the work performed by
an employee may lead to irrational use of working time
the violation of the work schedule or the failure to comply with
his assignments;
– risk of injury or damage to property in the event of non-compliance with the rules
of safety rules, equipment operation and fire safety.

© LLC “Information-analytical center “LIGA”, 2021
© “LIGA LAW” LLC, 2021

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