Several hours have passed since the speech of the Russian President on Russian TV and publication of Presidential Decree "On Declaring Non-working Days in the Russian Federation" dated March 25, 2020 (hereinafter referred to as the "Presidential Decree"), and our clients have already started to ask us about the obligations that the issued regulatory legal act imposes on them as business owners and employers.
We would also like to draw your attention to the fact that in addition to the abovementioned Presidential Decree, Decree No. 31-UM "On Amendments to Decree of the Mayor of Moscow dated March 5, 2020 No. 12-UM" dated March 26, 2020 (hereinafter referred to as the "Mayor's Decree") is also in force and should be applied in Moscow. Similar by-laws have either already been adopted in other constituent units of Russia (e.g. St. Petersburg (Resolution No. 156 of the Government of St. Petersburg "On Amendments to Resolution No. 121 of the Government of St. Petersburg dated 13 March 2020") or will be adopted in the nearest future.
In this regard, we have tried to formulate our thoughts and recommendations on implementation of the abovementioned acts and are happy to share them with you.
Should we "obey"?
The Presidential Decree establishes that during the period from March 30 to April 03, 2020, non-working days are established in Russia with the maintenance of employees’ salaries. The main question we face as lawyers is the legal force of the Presidential Decree. Based on the provisions of Article 90 of the Russian Constitution, presidential decrees are obligatory for fulfillment in the whole territory of Russia. Thus, citizens and organizations are not entitled to disregard the decrees of the Russian President, which, in their turn, should not contradict the Russian Constitution and federal laws, for example, the Russian Labor Code.
At the same time, citizens and organizations are not entitled to independently consider a regulatory legal act of the Russian President illegal and not to comply with it, since the question of its legality is within the competence of the Russian Supreme Court and the Russian Constitutional Court checking it within the framework of the relevant judicial procedures. Thus, citizens and organizations are obliged to comply with the Presidential Decree since its entry into force. It should also be noted that the repeal of the presidential decrees is a very rare phenomenon: for example, since 2002 the Russian Supreme Court has issued only one decision in favor of the applicant declaring the act of the Russian President's illegality (and that is the case with respect to the decree of Boris Yeltsin issued in 1996).
What is "non-working day" and is this term in line with the Russian Labor Code?
Although the term "non-working day" in the Presidential Decree is not somehow defined in Russian legislation (whereas "rest days" and "non-working holidays" are covered by Articles 111 and 112 of the Russian Labor Code, respectively), we believe that it is general in relation to "non-working holidays" and has essentially the same legal consequences as those established for such days (for example, by Article 113 of the Russian Labor Code).
Moreover, the term "non-working day" is used in other legal acts, for example, in Article 193 of the Russian Civil Code and Article 14 of the Russian Labor Code, and obviously means any day when it is prohibited at the federal level or at the level of the subject to involve workers in work. Based on the above, we tend to believe that regardless of their attitude to the Presidential Decree, employers are obliged to comply with it taking into account the provisions of the Russian labor legislation, which also determines the cases and procedure for involving employees in work on such non-working days.
Which employees can be involved?
If the employer is able to do so, then, of course, employees must be released from work within the period specified by the Presidential Decree, except for the following:
- continuously operating organizations (by virtue of Article 113 of the Russian Labor Code they are organizations that perform work that cannot be suspended under production and technical conditions);
- medical and pharmacy organizations;
- organizations providing the population with foodstuffs and essential goods;
- organizations performing urgent work under extraordinary circumstances and in other cases that endanger the life or normal living conditions of the population; and
- organizations engaged in urgent repair and loading and unloading operations.
Moreover, under Article 113 of the Russian Labor Code, employees may also be involved to work on rest days and non-working holidays if there is a need to perform unforeseen work, which will further affect the normal functioning of the organization as a whole or its individual structural units. Thus, the Russian Labor Code generally allows involving employees to work on non-working days, if the employer is able to justify that the work performed by the employee was urgent and its non-performance may have a negative impact on the employer's functioning.
What procedures must be followed when involving the employees to work?
If the employer assumes that the abovementioned cases may apply to the organization, the employees could be involved to work. However, since there is no legislated list of such organizations or sufficient characteristics to qualify them as such, we would in any case recommend the employer to do the following to avoid possible negative consequences:
- issue a written order to involve employees to work on non-working days; and
- to get the employee's written consent to involve to work on such days.
To what extent should salaries be paid?
Article 153 of the Russian Labor Code establishes that work on a holiday or non-working holiday is paid at least twice. Regarding the case with the Presidential Decree, we believe that when involving employees of organizations that are not subject to exemption from the Presidential Decree, the work should indeed be paid in a double amount. However, if the employer considers that the provisions of the Presidential Decree on non-working days do not apply to the organization by virtue of paragraph 2 of this Presidential Decree, the usual salary should be paid to the employees (but we still recommend following the abovementioned procedures).
What are the consequences of non-complying with the Presidential Decree and the requirements of the Russian Labor Code?
In addition to possible labor disputes with employees, which are one of the negative consequences of employers' failure to comply with the requirements of the Russian Labor Code, the employer may also be subject to administrative liability under Article 5.27 of the Russian Code of Administrative Offences.
In accordance to this article, a violation of labor legislation and other regulations containing labor law provisions entails a warning or imposition of an administrative fine for each violation:
- for legal entities' management and individual entrepreneurs in the amount of up to 5,000 rubles;
- for legal entities in the amount of up to 50,000 rubles.
The following organizations should temporarily suspend their work in the period from March 28 to April 5, 2020:
- restaurants, cafes and others;
- retail facilities, except from pharmacies, grocery stores and stores selling non-food items of prime necessity;
- beauty salons and other similar organizations.
- arrived from the People's Republic of China, the Republic of Korea, the Italian Republic and other countries mentioned in the Mayor's Decree;
- older than 65 years;
- having diseases specified in annex 2 of the Mayor's Decree; and
- those who are subject of isolation orders issued by a sanitary doctor.
We also cannot exclude that additional liability may be established in the coming days for violators of the Mayor's Decree.
We hope that our recommendations will be helpful for you.
We wish you a good health!
TA Legal Consulting team
