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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Secretan Troyanov Schaer

    As at March 30, 2020

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by Secretan Troyanov Schaer and is published with their kind permission. With thanks to:

    CONTACT:  Secretan Troyanov Schaer  |  Markus Schaer  |  markus.schaer@sts-law.ru  www.sts-law.ru

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1.  Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2.  Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3.  Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4.  Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5.  If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6.  One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact?  If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus.  What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus.  For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update 

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

     

    Country Overview

    As at March 30, 2020

    1.  What are an employer’s main legal obligations?

    The main areas of an employer’s legal liability associated with COVID-19 in the workplace include:

    • Ensuring the workplace health and safety of employees (this is a general obligation under Section X of the RF Labor Code);
    • Complying with obligations under the contract of employment, internal policies, collective agreements and labor law (e.g., continuing to pay wages, ensuring the employee works within the terms of the contract of employment);
    • Complying with obligations under social security legislation, in particular, the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance relating to temporary inability to work and in connection with maternity”; and
    • Complying with obligations of sanitary laws and regulations, including prescriptions of the chief government sanitary physicians (Federal Law of March 30, 1999 No. 52-FZ “On the sanitary and epidemiological wellbeing of the population”), in particular to implement restrictive measures (quarantine), which can be ordered by the federal, regional and local authorities based on the decisions and instructions of the sanitary physicians.

    Currently, sanitary and epidemiological rules tend to vary from one region to another, with stricter rules in Moscow, the Moscow Region and St. Petersburg. It is important to check and monitor federal and regional websites (in particular for the Government, Health Ministry, Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing at federal and territorial level) as well as the central government website for information for the population on the COVID-19 outbreak (https://www.стопкоронавирус.рф//). A so-called state of increased alertness was introduced in all 85 territorial entities of the Russian Federation.

    An employer may also wish to review its existing insurance policies, including medical insurance, evacuation cover and business interruption.

    2.  Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation in Russia on an employer to specifically have a workplace COVID-19 response plan (except a general vague prescription in article 30 Federal Law of November 21, 2011 No. 323-FZ “On the principles of health protection of citizens in the Russian Federation” to take legal, economic and social measures for the prevention and early detection of infectious diseases). The Labor Code requires all employers to ensure the safety and health of all their employees in their workplace. These legal obligations can be complied with in various ways, including by issuing internal policies or instructions.

    One reasonably practicable step an employer could take is to develop a plan dealing with workplace health and safety issues associated with COVID-19. The more detailed the plan, the better prepared an employer will be to cope with any COVID-19 outbreak. A plan should deal with preparations to prevent an outbreak, what happens during the outbreak, and the steps to be taken after the outbreak. Both workplace health and safety issues, and business continuity issues should be covered. The plan may be part of and/or a refinement of a broader plan already developed. A plan would be binding on the employer’s personnel if formally approved by the management and brought to the attention of employees (to be acknowledged by signature).

    3.  What should a workplace COVID-19 response plan cover?

    The Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing (Rospotrebnadzor, www.rospotrebnadzor.ru) and its territorial agencies issue recommendations and binding sanitary-epidemiological instructions for both individuals and employers. Recommendations currently include disinfection of contact surfaces in company premises during the day; equipment for disinfection of air; maintenance of an inventory of disinfectants for the cleaning of premises and of hands; restriction of business trips abroad; and, if technically possible, replacing face-to-face meetings by video and audio conferences. Regional authorities have issued legislation to make some of these measures binding. In Moscow, for instance, employers must measure the body temperature of employees.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist. The response plan should refer to, and implement, official recommendations and instructions. It is further important to put the relevant internal documentation into place. Such documentation should include an instruction to employees on workplace safety during the COVID-19 outbreak (each employee should acknowledge receipt of this documentation/instruction by signature); instructions to responsible personnel to purchase disinfectants, to disinfect/clean premises, to check the body temperature of employees and visitors; a journal to record daily body temperature checks; and instructions concerning business travel, etc. The body temperature of an employee is considered personal data, but no consent should be needed as the measure is necessary to ascertain that the employees can perform their job duties (article 88 RF Labor Code). At the same time, it is advisable to inform the employees (letter of Roskomnadzor of March 10, 2020).

    It is advisable and officially recommended that employers introduce, wherever commercially and technically feasible, remote working. Remote working requires, in particular, an addendum to the individual employment agreement. The employer cannot impose remote work, at least not without observing a two-month notice period. The employee should be compensated for costs (e.g., internet connection fees) and, if the employee uses their own equipment, for the use of such equipment. The employer should also check and, where necessary, adapt, confidentiality undertakings. The transfer to remote working should not affect salary, at least not where the duties and scope of work remains the same.

    4.  Can I direct my employees to go home or stay at home if there is an outbreak?

    Not usually, unless this is ordered by the sanitary physician or the authorities. Self-isolation (mostly at home) is one of the restrictive (quarantine) measures defined by the law and was ordered countrywide for individuals returning from abroad for a period of 14 days after their entry into the country (Decision of the RF Chief State Sanitary Physician of March 18, 2020, No. 7). More extensive restrictive measures can be introduced at a regional or local level. In Moscow, for instance, self-isolation is also required – until at least April 14, 2020 – for persons living in the same household as individuals returning from abroad and – with some exceptions – persons belonging to risk groups (e.g., people over 65 or those suffering from one of the diseases listed in the Decree of the Moscow Mayor of March 26, 2020, No. 31-UM).

    The employer must ensure employees comply with these measures and assist them in doing so. During self-isolation, employees can obtain a medical certificate and apply for sick leave. However, they can also work from home. Remote working and working from home are two employment situations specifically defined by chapters 49 and 49.1 RF Labor Code. They can be introduced by signing an amendment to the employment contract which regulates the relevant details (duration, place, communication, etc.).

    The Moscow Decree No. 31-UM (numbering as per March 26, 2020) requires the employer to send employees home in case of fever (i.e., increased body temperature), which allows the employer to suspend the employee from work (article 76 RF Labor Code). In these circumstances, the employer has no obligation to pay the employee’s salary. In our opinion, it is then the employee’s obligation to consult a doctor and obtain a medical certificate. During the time stated in the certificate, the employee is on sick leave. The employer cannot terminate employment while the employee is on sick leave.

    By Decree No. 34-UM (numbering as per March 29, 2020), the Moscow Mayor extended self-isolation to the entire population of the city. Approximately two dozen other territorial entities (Moscow Region, St. Petersburg, Tatarstan, Sverdlovsk Region etc.) have followed. In Moscow, this measure does not prohibit employees from attending work except in those industries which are no longer allowed to operate (at least so it seems based on current information). The Moscow Government intends to introduce special passes (QR codes) shortly. The passes will allow people to move within the city. Individuals self-isolated under Decree 34-UM can (at least currently) not obtain medical certificates (see question 6 below).

    An infringement of sanitary-epidemiological rules can be a criminal offense (article 236 Criminal Code), but currently only if it leads to mass sickness or a death. A legislative change to increase liability will occur shortly. A draft law on changes to the Code of Administrative Offenses (draft law 804768-7) was adopted by the State Duma on March 31, 2020 in the second reading and will, in particular, introduce a new article 20.6 with penalties for failure to comply with rules of behavior during a state of increased alertness or a state of emergency (fines for corporate entities range from 100,000 to 300,000 RUB, for their officers from 10,000 to 50,000 RUB and for individuals from 1,000 to 30,000 RUB). A draft law on changes to the Criminal Code (draft law 929651-7) was adopted on March 31,2020 in the third and final reading and will increase the penalties where there is a criminal offense (up to seven years prison). It is therefore advisable for employers to strictly enforce sanitary rules even though the situation under employment law may not always be straightforward.

    5.  Can I direct an employee to see a doctor?

    As a rule, it is not possible to ask an employee to see a doctor. Exceptions exist for certain categories of employees (in particular, those working in the transport, medical and food industries), where medical exams are compulsory. However, employees absent from work because of sickness have a legal obligation to obtain a medical certificate and submit it to the employer, otherwise they can be dismissed as absent from the workplace without good reason. Employees in self-isolation can obtain medical certificates online. An employer may also consider informing the competent authorities (e.g., via a hotline) if an employee refuses to see a doctor when so directed, provided the employee shows symptoms of a COVID-19 infection (high temperature, cough, etc.).

    6.  Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes. The contract of employment will continue during a COVID-19 outbreak unless the employment has ceased. If the employee is in forced self-isolation (quarantine), they can, in some situations (see question 4 above), obtain a medical certificate and be put on sick leave. During sick leave, the employer pays a social allowance instead of the salary. Social allowance payments can be set off by the employer against the employer’s payments to the social insurance fund (this provides insurance against sickness and maternity).

    If the employee cannot be occupied because of a temporary stoppage of operations (at the employee’s workplace, at company level or even within a region) for economical, technical or organizational reasons, the employer can use the regime of “idle time” (article 157 RF Labor Code). If it is the employer’s fault that operations are stopped, the employer must pay at least two-thirds of the average monthly salary (calculated on the basis of all remuneration paid to the employee affected for working time during the preceding 12 months). If the idle time is neither the employer’s nor the employee’s fault (e.g., if the government orders the business to shut down during a COVID-19 outbreak), the payment is two-thirds of the base salary as per the employment contract. During idle time, the employer can require the employee not to attend the workplace. The employer must issue an order (prikaz) to introduce idle time and notify the employee of such order, requiring their signature. The unemployment office must be notified within three days from the issuance of the order (article 25, point 2 Law of April 19, 1991 No. 1032-I “On employment of the population in the Russian Federation”; following a letter of Rostrud of March 19, 2012 No. 395-6-1 such a notice would be necessary only where the company stops operations completely, i.e., where all employees are affected).

    7.  Can I quarantine certain staff to certain parts of an office or send them to a different office?

    This depends on the employment contract. Transfers to certain parts of the same office do not normally require the employee’s consent. Transfers to another structural unit of the company (if the structural unit is defined in the employment contract) or to another location require the employee’s consent. The same applies to any change of the employee’s role in the company as defined by the employment contract. Article 72.2 RF Labor Code allows a temporary transfer of the employee (up to one month) to another role without the employee’s consent in the case of extraordinary circumstances threatening the life or normal living conditions of the population (this would, in our view, be the case during a COVID-19 outbreak), provided that the transfer is necessary to prevent such circumstances or to remedy their effects (the latter is, in most cases, not obvious).

    8.  Can I direct my employees to report suspected cases of COVID-19?

    Yes, in the event of a COVID-19 outbreak, in our view, it would be lawful and reasonable to ask employees to report if they suspect that they have COVID-19 (see question 4 above concerning criminal liability). The employer has an obligation to report persons having been in contact with an infected employee if asked by the competent sanitary authority.

    9.  Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    The employee can refuse to attend work if there is a risk to their life or health (article 220 RF Labor Code). In our view, this would not be the case (at least objectively) as long as the employer follows recommendations and instructions issued by the competent authorities. The employee can obviously also refuse work if they are required to be in self-isolation or are actually sick, but must provide a medical certificate to the employer.

    10.  Can I screen employees and customers before allowing them to enter the workplace?

    The screening of employees and customers may be a reasonable step for an employer to take to reduce the risk of its employees being exposed to harm. In any case there should be no problem with the remote measurement of body temperature (as mentioned above, in Moscow at least, employers are obliged to measure the body temperature of employees). As noted above, the body temperature of an employee is considered personal data, but no consent should be needed as the measure is necessary to ascertain that the employees can perform their job duties (article 88 RF Labor Code). At the same time, it is advisable to inform the employees (letter of Roskomnadzor of March 10, 2020).

    Moreover, the owner or lessee of premises is free to decide who to admit to such premises, at least if the premises are not open to the general public.

    CONTACT:  Secretan Troyanov Schaer  |  Markus Schaer  |  markus.schaer@sts-law.ru  www.sts-law.ru 

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Secretan Troyanov Schaer  provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.