April «holidays» announced by the President: how will business cope?
A presidential decree was published and entered into force yesterday March 25, 2020[1], declaring, among other things, that the week from March 30 (Monday) to April 03 (Friday) 2020 would be “a paid non-working week[2].”
This decree does not apply to people working in:
- constantly operating organizations;
- medical and pharmacy organizations;
- organizations providing food and essential goods;
- organizations performing urgent work in emergency situations and other circumstances jeopardizing people’s life or normal living conditions;
- organizations engaged in emergency repair and freight handling operations.
People working in the abovementioned organizations will work that week.
It should be noted, however, that the concept of “paid non-working days” is not found in the Russian Labor Code. An exhaustive list of types of time off is provided in Article 107 of the Labor Code which specifies, for example, weekends, days off, public holidays. The “paid non-working days” specified in the presidential decree are not listed in Article 107. This non-working week does not formally constitute days off, and to recognize it as public holidays would also be wrong legally and ethically.
Besides, the president is not entitled under the Labor Code to change the list of types of time off, so many questions have arisen about the status of these “non-working days” and the consequences of their introduction:
- Should wages be paid?
- Can employees be called to work during that week?
To find out what companies can do, please see our Q&A in the table below.
| Question | Should companies pay wages to their employees prior to the non-working days if the wage payment date is in this period? |
| Answer | We think so. If the wage payment date falls on a weekend or public holiday, then wages are to be paid on the day before that date[3]. For example, if a company operates on the basis of a five-day work week, then the company will have to pay wages no later than Friday (March 27, 2020). Although the non-working days set by the president constitute neither “days off” nor “public holidays”, not paying wages before this week would, in our opinion, entail serious risks for companies if the wages payment date falls on this week. |
| Question | Can companies pay wages in proportion of the hours worked (not all days)? |
| Answer | No, the word “paid” qualifying those non-working days in the decree prohibits any reduction in wages. This situation is comparable to the payment of wages in case of public holidays which, if any in a month, are not grounds for reducing the wages to employees receiving a fixed salary. And if wages are paid otherwise, they should be paid in the amount and how it is determined in employment contracts, internal regulations or collective agreements[4]. |
| Question | Can employees still be requested to work, in particular, remotely? |
| Answer | Yes, but this should be done in compliance with the procedure for requesting employees to work during days off. The appropriate documents should be drawn up, and the wages payable for those days should be duly calculated. |
| Question | Is sick pay paid for those non-working days? |
| Answer | We think that sick pay should be paid for those non-working days. Sick pay is paid for all calendar days of sick leave except for the periods listed in the law, in particular, when employees are discharged from work with full, partial or no pay. The announced “non-working week” could qualify as such period, but the Social Insurance Fund considers that days off and public holidays during sick leave do not fall under this exception and should be paid (Social Insurance Fund Letter No. 02-09-14/22-03-848 dated January 31, 2017). The “non-working days” in the presidential decree are not referred to as days off or public holidays although they are by their nature closer to public holidays. If they qualify as public holidays or days off, then sick pay should be paid for those days as well although there is no clear-cut answer to this question now. |
We would like to note once again that, in our opinion, non-working days may be introduced only by law. The Russian Labor Code (as the law) not only provides for the types of time off but also lists the specific dates of public holidays and grants some authority to the government over the setting of these dates. So, days off may be postponed by governmental decrees which must be published at least one month prior to the beginning of the relevant year[5]. It seems that the purpose of introducing these non-working days by presidential decree was to act promptly due the current pandemic which requires urgent measures. However, even with this purpose in mind, the matter of the decree lawfulness and binding authority still remains.
If you have any questions or would like to discuss this matter further, please write to Anton Kabakov or Ekaterina Belyaeva.
Truly yours,
[1] Presidential Decree No. 206 Declaring Non-Working Days in Russia dated March 25, 2020
[2] http://publication.pravo.gov.ru/Document/View/0001202003250021.
[3] Article 136 Russian Labor Code
[4] Article 112 Russian Labor Code
[5] Article 112 Russian Labor Code