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22 October 2020

Teleworking in Europe. Ukraine

Source: Andersen Global

Implementation of telework

In response to the Covid-19 pandemic, a teleworking clause was added to Ukrainian labor law in March 2020. Nevertheless, the teleworking clause raises more questions than it answers. Recommendations are therefore to be made only with reservations.

In general, the introduction of telework shall be agreed between the employee and the employer in a written employment contract. However, in cases such as a pandemic, the employer shall be able to unilaterally order telework, whereas the employee does not have a unilateral right to introduce telework. Special time limits apply only if the employer unilaterally orders telework. As soon as the conditions for the unilateral order cease to apply (the pandemic is over), telework must be terminated. If the introduction of telework is contractually agreed between the parties, it is recommended that the actual duration of telework be recorded in writing.

According to the general rules of the Labor Code, the employer is obliged to ensure appropriate working conditions for the employee, to provide him with work equipment and to reimburse the costs incurred by the employee in connection with the performance of his work tasks. In addition, to protect privacy, the employer may monitor the employee only with the employee’s consent. Such an arrangement should be agreed between the parties, provided the employee agrees.

Required involvement of employee representatives and public authorities

There is no obligation to involve employee representatives in the introduction of telework, as it is introduced either as part of a written employment agreement between an employee and an employer or by the order of an employer (in the event of a pandemic/epidemic).

However, the employee can seek assistance from the employee representatives in negotiations with the employer on the introduction of telework. There is also no obligation to inform state authorities about the introduction of telework.

Health and safety and data protections

The employer is obliged to ensure safety and health, appropriate working conditions and a suitable environment. In the absence of a special regulation, this also applies to telework. There are no guidelines on how this can be guaranteed from a practical point of view. In this context it is problematic that an employer is forbidden to enter the home of an employee without the employee’s consent for whatever reason.

Employers should consider in each individual case what they can do to meet the health and safety requirements during teleworking and how they can provide evidence of this. However, during the current Covid-19 pandemic, all government inspections and fines have been suspended, so it may be assumed that employers are not at risk of not having complied with health and safety requirements when teleworking.

Teleworking employees can decide within the framework of the laws on working hours at what time they perform their work. Even if the employees are not obliged to document their working time, the employer should make an agreement with the employee. In this way he can prove that he has taken care of the compliance with the working time regulations.

Liability

Accidents during teleworking are not specifically regulated. According to the general regulations, the employer is liable for accidents that occur during the performance of work tasks. Those principles shall also apply for telework. Accident insurance is compulsory and is provided by the state. However, the employer can additionally sign for an optional private insurance.

Liability for damages caused to employees, employers and third parties during telework is considered from an employment or civil law perspective, depending on the circumstances. Lastly, the employee’s material liability is limited to an average monthly salary.

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