The remote work mode, which appeared during the pandemic, attracted many employees. Therefore, they are not at all against its conservation. Employers, on the other hand, are considering whether to keep remote work, bring employees into the office, or stop at a blended work mode. And how to legally fix the chosen regime?
“According to the second part of article 312.1 of the Labor Code of the Russian Federation, an employment contract or an additional agreement to an employment contract may provide that the employee performs a labor function remotely on a permanent basis (during the duration of employment employment contract) or temporarily (continuously during the period indicated by the employment contract or additional agreement to the employment contract) that does not exceed six months, or periodically, with alternating periods for the worker to perform the function remote work and periods for the employee to perform the labor function at a stationary workplace) Therefore, as a rule, the mode of remote (remote) work can be established only with the mutual consent of the parties to a contract The Labor Code of the Russian Federation does not contain regulations obliging an employer to apply a remote work regime to any employee or prohibiting such a regime,” the letter from the Ministry of Labor reads, which is a response to a question received on the website of the department (the letter is in open access).
It also explains that it must be taken into account that due to the content of the labor function, the family and other circumstances of a certain worker, the organizational and technical conditions of the employer, as well as the requirements of the legal acts regulating the organization of the activities of a certain organization, it is not always possible to establish a modality of remote work.
The appropriate decision is made by the employer, taking into account the specific circumstances of the situation.
“At the same time, according to article 72 of the Labor Code of the Russian Federation, changing the terms of the employment contract determined by the parties is allowed only by agreement of the parties to the employment contract (in writing) .. .
Thus, article 74 of the Labor Code of the Russian Federation allows a change, at the initiative of the employer, of the terms of the employment contract determined by the parties (with the exception of the employee’s labor function) for reasons related to changes in conditions organizational or technological work. This article establishes the rules for changing the terms of the employment contract, as well as the consequences of the worker’s refusal to work in the new conditions (termination of the employment contract in accordance with paragraph 7 of the first part of article 77 of the Code of Labor of the Russian Federation). An approximate list of reasons that allow the employer to make an appropriate decision to change the terms of the employment contract is indicated in the first part of Article 74 of the Labor Code of the Russian Federation and paragraph 21 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. This list is open and evaluative”, – specified in the letter from the Ministry of Labor.
As an associate professor of the basic department of the Chamber of Commerce and Industry of the Russian Federation “Management of Human Resources” of the PRUE. GV Plekhanov Farida Mirzabalaeva, in emergency cases, at the initiative of the employer, it is possible to transfer employees to a remote work mode. Such cases include accidents at work, work accidents, fires, floods, earthquakes, epidemics or epizootics, and other exceptional cases that endanger the life or normal conditions of existence of the entire population or part of it.
The temporary transfer of an employee to remote work at the initiative of the employer can also be carried out if a relevant decision is made by a state authority and (or) the local government.
Employee consent is not required for such a transfer. At the same time, the employer provides the worker temporarily transferred to remote work at the initiative of the employer, the equipment, software and hardware, information security tools and other means necessary for this worker to perform the work function remotely, or pays a compensation to the remote worker for the use of equipment they own or rent, software and hardware, information security tools and other means, reimburses the costs associated with their use, and also reimburses the remote worker for other costs associated with the remote work performance.
It is also not necessary to make changes to the employment contract.
“But as a rule, an employee can be transferred to remote work only with the consent of the employer and the employee himself, by drawing up an additional agreement to the employment contract (Article 72 of the Labor Code of the Russian Federation), ”adds Alim Bishenov, founding partner of the law firm Bishenov & Partners.