Gaps in Iabor Legislation Related to COVID-19

Alexey Lada

East Institute of Management, Branch of RANEPA, Muraviova-Amurskogo St., 33, Khabarovsk, Russia

Keywords: non-working days, industrial accident, remote work.

Abstract

The article analyzes the normative legal acts regulating labor relations adopted during the COVID-19

pandemic. As a result of the analysis of these acts, the author comes to the conclusion that during the pandemic

there was a violation of the hierarchy of normative legal acts built in Article 5 of the Labor Code of the

Russian Federation, and their inconsistency arose when issues that should be regulated in the Labor Code of

the Russian Federation were regulated in by-laws. In particular, the bylaws introduced the category "non-

working days", which is not provided for by the Labor Code of the Russian Federation. Analyzing labor

legislation during a pandemic, the author identified such gaps in legislation as non-proliferation of rules on

remote work to foreign citizens living outside the Russian Federation, as well as non-proliferation of rules on

remote work to relationships with the participation of aggregators, not attributing medical masks during a

pandemic to personal protective equipment of workers in the workplace, as well as not recognizing the fact

of infection with coronavirus infection COVID-19 as an accident at work. As a result, the author proposes to

fill these gaps by introducing appropriate amendments to the labor legislation.

1 INTRODUCTION

In the context of the coronavirus pandemic (COVID-

19), most states have taken measures to improve labor

legislation in order to adapt it to the new conditions.

During the pandemic, gaps in the labor legislation

were revealed, which made it necessary to improve it

in the field of remote work, labor protection of

employees and protection of their labor rights.

In this regard, new concepts such as "remote

work", "non-working days", which were not

previously known, have appeared in the labor

legislation. Unfortunately, in a hurry, many changes

that had to be included in the Labor Code of the

Russian Federation and other federal laws were

regulated at the level of bylaws and even at the level

of "instructive" letters containing interpretative

norms.

It is obvious that the gaps in labor legislation need

to be filled, but only within the framework of the

hierarchy of normative legal acts built in Article 5 of

the Labor Code of the Russian Federation, especially

since there are already positive examples, for

example, amendments to Chapter 49.1 of the Labor

Code of the Russian Federation on remote work.

https://orcid.org/0000-0003-4152-4815

2 RESEARCH METHODOLOGY

During the study, the historical and legal method was

used to assess the legislation on non-working days,

the comparative legal method was used to determine

the similarities and differences in the legal regulation

of non-working days and weekends, as well as non-

working holidays, the systematic method was used to

analyze the relations of aggregators regulated by civil

law and remote workers regulated by the norms of the

Labor Code of the Russian Federation, as well as the

logical method and methods of analysis and synthesis

were used in the interpretation of the norms of law.

3 RESULTS AND DISCUSSIONS

Due to the pandemic and the need to contain the

spread of the virus, there was a need for short-term

release of workers from work. In the Labor Code of

the Russian Federation, two types of rest time are the

most suitable for this among the rest time: weekends

and non-working holidays. Article 111 of the Labor

Code of the Russian Federation provides for two days

Lada, A.

Gaps in Iabor Legislation Related to COVID-19.

DOI: 10.5220/0010659900003224

In Proceedings of the 1st International Scientiﬁc Forum on Jurisprudence (WFLAW 2021), pages 28-32

ISBN: 978-989-758-598-2

off for a five-day and one day for a six-day working

week. Moreover, the employer can introduce a

reduced working week to employees, including at the

expense of additional days off. Article 112 of the

Labor Code of the Russian Federation establishes

non-working holidays, and at the federal level, this

list is exhaustive. The Government of the Russian

Federation in order to rationalize the use of weekends

and non-working holidays is given the opportunity to

move the weekend to other days.

Therefore, in connection with the need to release

employees from work, the most rational would be to

provide days off in accordance with Article 111 of the

Labor Code of the Russian Federation. However, the

Russian President took a different path. He

established so-called "non-working days" for

employees, which are not provided for by labor

legislation.

The Decree of the President of the Russian

Federation of 25.03.2020 No. 206 from March 30 to

April 3, 2020 declared non-working days with the

preservation of wages for employees. By Decree of

the President of the Russian Federation No. 294 of

28.04.2020, from 6 to 8 May 2020, inclusive, were

also declared non-working days with the preservation

of wages for employees. The Ministry of Labor of the

Russian Federation in a letter dated 26.03.2020 No.

14-4/10/P-2696 clarified that a non-working day does

not apply to either weekends or non-working

holidays. The situation was repeated in 2021. By the

Decree of the President of the Russian Federation of

23.04.2021 No. 242 from 4 to 7 May 2021. non-

working days were declared with the preservation of

wages for employees.

It should be noted that the legal regime of so-

called "non-working" days has both similarities and

differences from the regime of weekends. The

similarity is that the annual leave is not extended for

both weekends and non-working days, and the

presence of both days off and non-working days is not

a reason for reducing the wages of employees.

The differences are as follows: first, for payment,

when working on a weekend, payment is made

according to Article 154 of the Labor Code of the

Russian Federation in double the amount or an

additional day of rest is provided, when working on

non-working days, the payment is made in the usual,

and not increased, amount.

According to some lawyers, the so-called "non-

working days", by their legal nature, cannot be

attributed to working time (Arshinova , 2020), while

other scientists believe that "non-working days" also

cannot be attributed to rest time (Golovina and

Kushina and Serova, 2020). Thus, it can be stated that

the decrees of the President of the Russian Federation

introduced a completely new category of "non-

working days", which is not provided for by labor

legislation.

We should agree with the scientists who state that

during the pandemic there was a violation of the

hierarchy of normative legal acts built in Article 5 of

the Labor Code of the Russian Federation and their

inconsistency (Golovina and Ramakulov and

Tomashevsky and Hasenov, 2020), when the issues

that should be regulated in the Labor Code of the

Russian Federation began to be regulated in by-laws.

Article 5 of the Labor Code of the Russian Federation

stipulates that amendments to the Labor Code of the

Russian Federation must be implemented by separate

federal laws. Therefore, the establishment of a new

category of "non-working days" by the Presidential

decree contradicts Article 5 of the Labor Code of the

Russian Federation.

However, it should be noted that there is a gap in

the legislation if there is a need for short-term release

of workers from work during the pandemic. The

category of "non-working days" proposed in the

decree of the President of the Russian Federation

seems quite successful. But this category should be

established in the federal law by making changes to

the Labor Code of the Russian Federation. It is

necessary to introduce Article 111.1 of the Labor

Code of the Russian Federation "Non-working days",

which states the following: "Non-working days are

introduced during the pandemic in order to prevent its

spread. Specific dates of non-working days are

established by the Presidential decree. For the period

of non-working days, employees retain their place of

work and average salary. The presence of non-

working days is not a reason for reducing the wages

of employees."

Another innovation during the pandemic was a

more detailed regulation of remote work in the Labor

Code of the Russian Federation. According to

scientists, remote work corresponds to the new

relationships in the social and labor sphere and

metaphysics (philosophy of law), and therefore is a

normal practice (Lada and Markov, 2019).

Chapter 49.1 of the Labor Code of the Russian

Federation does not grant the right to foreign workers

residing outside the Russian Federation to work

remotely on the territory of the Russian Federation,

although taking into account the fact that the borders

are closed during the pandemic, this could partially

solve the problem of attracting highly qualified

foreign workers.

It is necessary to agree with scientists who believe

that the ban on remote work for foreigners living

Gaps in Iabor Legislation Related to COVID-19

outside the Russian Federation restricts the freedom

of the parties to remote labor relations, does not meet

the goals of Chapter 49.1 of the Labor Code of the

Russian Federation and significantly reduces the

value of the benefits of remote work (Vasil'eva and

SHuraleva, C., 2016).

Therefore, the provisions of the law contained in

Chapter 48.1 of the Labor Code of the Russian

Federation should also apply to the work of Russian

citizens, foreign citizens and stateless persons

permanently residing outside the territory of the

Russian Federation.

Another gap in the legislation is the too narrow

interpretation of remote work and the fallout from the

legal regulation of labor law norms of similar

relations, in particular relations with the use of

aggregators. The relations of the aggregator with the

contractor are regulated exclusively by the norms of

civil law. However, the scientists ' proposal to

regulate these relations with labor law norms deserves

attention, since they are similar to labor relations

(Lyutov and Voitkovska, 2021): monitoring

compliance with the limit of hours worked by a taxi

driver through a tachograph, a bonus system for

drivers that resembles the bonus system for

employees (Lada and Voronin, 2020), as well as with

such types of work regulated by labor law , such as

"work on call" (Zakalyuzhnaya, 2015). As one of the

arguments, they cite the decision of the Court of

Appeal of Paris on the recognition of the contract

between a taxi driver and the Uber platform as an

employment contract (Lyutov, 2020).

Also, working in the "cloud" has a lot in common

with labor relations, which is the concept of virtual

work regardless of the location and jurisdiction of the

enterprise, without fixing the workplace and with no

reference to the time of work (CHikanova and

Seregina, 2018).

Many scientists express confidence that in the

next few years, work based on Internet platforms will

be regulated by labor legislation (Filipova, 2020).

In order to protect the rights of these persons, it is

necessary to introduce a new chapter 48.2 in the

Labor Code of the Russian Federation to call it "Legal

regulation of labor of employees with aggregators".

One of the security measures that an employer

must provide during a pandemic is the mandatory

wearing of medical masks.

In the order of the Ministry of Science and Higher

Education of the Russian Federation of August 28,

2020, No. 1133, all educational institutions of higher

education are required to ensure the mandatory

wearing of medical masks. However, the order does

not mention at whose expense medical masks should

be purchased, which is a gap in the legislation. It

seems that during a pandemic, a medical mask should

be equated with personal protective equipment and

applied by analogy to the norms of Article 212 of the

Labor Code of the Russian Federation on the

obligation of the employer to ensure the purchase and

issue of personal protective equipment at their own

expense. An argument in favor of this may be the

obligation of the employer to provide medical masks

to the staff of medical institutions. During a

pandemic, if the employer does not have the

obligation to conduct mandatory testing of employees

for COVID-19, the presence of an employee in the

workplace can be no less dangerous than being in a

medical facility.

In this regard, it is necessary to amend the labor

legislation, equate the protective medical mask with

personal protective equipment during the pandemic,

and oblige the employer to purchase protective

medical masks at their own expense during the

pandemic, and, if necessary, protective gloves.

It should be noted that the refusal to issue a

medical mask at the expense of the employer during

the pandemic should be equated with the failure to

provide the employee with personal protective

equipment. In particular, Article 220 of the Labor

Code of the Russian Federation provides for the

refusal of an employee to perform work in case of

failure to provide the employee with individual and

collective protection equipment, which should also be

applied if the employee is not provided with a medical

mask at the expense of the employer.

The issue of the employer's responsibility for the

infection of an employee with COVID-19 in the

workplace is relevant. The legislation of the Russian

Federation establishes that if a medical worker who

directly works with patients with the COVID-19

coronovirus has contracted this disease, then there is

a presumption that he was infected at the workplace.

Thus, the fact of infection of a medical worker

directly working with patients with the COVID-19

coronovirus is actually equivalent to an accident at

work.

For the rest of the employees, there is no such

presumption, and therefore they need to prove that

they are infected with the COVID-19 coronavirus

infection in the workplace. In practice, this fact is

quite difficult to prove. If the employee proves that

the employer violated the sanitary and

epidemiological norms prescribed by law, then the

fact of infection with the COVID-19 coronavirus

infection in the workplace will be much easier to

prove.

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In this regard, it is necessary to fix the

presumption in the resolution of the Plenum of the

Supreme Court of the Russian Federation, according

to which, if the fact of violation by the employer of

sanitary and epidemiological norms aimed at

preventing the spread of COVID-19 coronavirus

infection is proved, then it is considered that the

employee has contracted COVID-19 coronavirus

infection in the workplace.

Judicial practice has not yet been formed on this

issue, but the first claims have already been filed by

medical workers in St. Petersburg (Ermakov, 2020).

The difficulty lies in proving the fact of infection in

the workplace.

It seems that if an employee can prove that he or

she contracted the COVID-19 coronavirus infection

during working hours at the workplace or on the

territory of the employer, then this fact should be

equated with an industrial accident and extend to the

employee the effect of the Federal Law of the Russian

Federation "On Mandatory Social Insurance of

Employees against Industrial Accidents and

Occupational Diseases", according to which the

social Insurance fund of the Russian Federation will

have to pay the employee the same payments as in

any other industrial accident: a one-time payment,

average earnings, medical expenses. And the

employer will have to compensate the employee for

moral damage.

At the same time, it should be taken into account

that if the employer has taken all the measures

provided for by law to prevent the infection of

employees, but the employee still became infected,

then he is not entitled to payments. In the world

practice, there is a tendency to remove responsibility

from the employer for the infection of an employee

with the COVID-19 coronavirus infection in the

workplace, in particular, in the United States, it is

proposed to completely exempt the employer from

responsibility to the employee associated with the

consequences of the pandemic. Trade unions do not

agree with this approach, since limiting the liability

of companies will lead to the fact that their managers

will no longer care about the safety of their

employees(Efimova, 2020) .

4 CONCLUSIONS

During the pandemic, gaps in labor legislation were

identified, which revealed the need to improve labor

legislation in the field of remote work, labor

protection of employees and protection of their labor

rights.

1. The Labor Code of the Russian Federation does

not provide for such a category as "non-working

days". Nevertheless, during the pandemic, the

category of "non-working days" is regularly applied

at the level of the decree of the President of the

Russian Federation. At the same time, it should be

noted that there is a gap in the legislation in the need

for short-term exemption of workers from work

during the pandemic. To give legitimacy to this

category, it is necessary to make changes to the Labor

Code of the Russian Federation. It is necessary to

introduce Article 111.1 of the Labor Code of the

Russian Federation "Non-working days", which

states the following: "Non-working days are

introduced during the pandemic in order to prevent its

spread. Specific dates of non-working days are

established by the decree of the President of the

Russian Federation. For the period of non-working

days, employees retain their place of work and

average salary. The presence of non-working days is

not a reason for reducing the wages of

employees."We hope you find the information in this

template useful in the preparation of your submission.

2. A gap in the legislation is the non-proliferation

of the norms on remote work for foreign citizens

living outside the Russian Federation, which restricts

the freedom of the parties to remote labor relations.

Therefore, the application of the legal norms

contained in Chapter 48.1 of the Labor Code of the

Russian Federation should also be extended to the

work of Russian citizens, foreign citizens and

stateless persons permanently residing outside the

territory of the Russian Federation.

3. A gap in the legislation is the lack of legal

norms regulating at whose expense medical masks for

workers should be purchased during a pandemic. It

seems that during a pandemic, a medical mask should

be equated with personal protective equipment and

applied by analogy to the norms of Article 212 of the

Labor Code of the Russian Federation on the

obligation of the employer to ensure the purchase and

issue of personal protective equipment at their own

expense. In case of non-issuance of a medical mask

to an employee, apply the consequences provided for

in Article 220 of the Labor Code of the Russian

Federation, in particular, the employee's refusal to

perform the work.

4. A gap in the legislation is the lack of norms on

the employer's labor law liability for the infection of

an employee with a coronavirus infection in the

workplace, which allows the employer not to care

about the safety of its employees. It seems that the

fact of infection with a coronavirus infection should

be equated with an accident at work and extend to the

Gaps in Iabor Legislation Related to COVID-19

employee the effect of the Federal Law of the Russian

Federation "On Mandatory social insurance of

employees against accidents at work and

occupational diseases". In the resolution of the

Plenum of the Supreme Court of the Russian

Federation, to fix the presumption according to

which, if it is proved that the employer violates

sanitary and epidemiological standards aimed at

preventing the spread of COVID-19 coronavirus

infection, then consider that the employee has

contracted COVID-19 coronavirus infection in the

workplace.

REFERENCES

Arshinova, V. (2020). Layoffs of employees in the context

of the pandemic.

Golovina, S., Kuchina, Yu., Serova, A. (2020). Labor

Legislation of Russia in the Era of the COVID-19

Pandemic: new challenges for the labor sector. In EAC-

LAW 2020, Proceedings of the XIV European-Asian

Law Congress "The Value of Law", Atlantis Press

SARL. Part of series AEBMR.

Golovina, S., Ramakulov, K., Tomashevskij, K., Hasenov,

M. (2020). Labor law and social security in the EAEU

States in the context of the COVID-19 pandemic: the

experience of Belarus, Kazakhstan, Kyrgyzstan and

Russia. In Russian law: education, practice, science. 4.

Lada, A., Markov, S. (2019). The idea of humanism and

socio-cultural bases of leges permissivae of Russian

labor law In APPSCONF- 2019, SHS Web of

Conferences 72.

Vasil'eva, YU., SHuraleva, C. (2016). Remote work in

Russia: law enforcement issues. In Bulletin of the

Perm University. Legal sciences. Issue 32.

Lyutov, N., Voitkovska, I. (2021). Remote work and

platform work: the prospects for legal regulation in

Russia. In Russian law journal. Volume IX. Issue 1.

Lada, A., Voronin I. (2020). Theoretical and Practical

Problems of Legal Regulation of Registration and

Implementation of Transport Passenger Taxi and Taxi

Ordering Service In ISCFEC 2020, International

Scientific Conference "Far East Con". Published by

Atlantis Press SARL. Part of series AEBMR volume

128.

Zakalyuzhnaya, N. (2015). Remote work and similar legal

relationships. In Right. Journal of the Higher School of

Economics..2.

Lyutov, N. (2020). The Platform Work: The Perspectives

for Regulation by Russian Labor Law. In EAC-LAW

2020, Proceedings of the XIV European-Asian Law

Congress "The Value of Law". Published by Atlantis

Press SARL. Advances in Social Science, Education

and Humanities Research: 498.

CHikanova, L., Seregina, L. (2018). Legal protection of

citizens from unemployment in the context of

information technology innovations in the field of labor

and employment. In Right. Journal of the Higher

School of Economics. 3.

Filipova, I. (2020). Labor law: challenges of the

Information Society In Right. Journal of the Higher

School of Economics. 2.

Ermakov, D. (2020). They are afraid, but they complain:

how health workers are seeking payment for COVID. In

RIA Novosti.

Efimova, A. (2020). Infection at work: what lawyers advise

In Gazeta.Ru.

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