The legal status of quarantine and the consequences of its non-compliance.
Yesterday, March 11, the Cabinet of Ministers enforced quarantine throughout Ukraine to prevent the spread of coronavirus.
How commercial organizations must work during this period and what fines are provided for non-compliance with the “silence” regime, read in article of Partner of ESQUIRES law firm, an attorney Viktoria Kovalchuk and lawyer Victor Zalyotin for Mind.ua.
On February 25, 2020, the Ministry of Health issued Order No. 521 “On Amending the List of Particularly Dangerous, Dangerous Infectious and Parasitic Diseases of the Human Being and Carrier of Pathogens of these Diseases”, which the classified the coronavirus as a particularly dangerous infectious disease.
On March 11, 2020 The World Health Organization announced that the coronavirus epidemic has grown into a pandemic, or in other words, it has gained worldwide spreading.
On the same day, the Rulling of the Cabinet of Ministers of Ukraine No. 211 from March 12, 2020, quarantine was enforced throughout Ukraine: citizens can not attend educational institutions and hold public events with the participation of more than 200 people for three weeks.
The Protocol of the Standing Committee on Technological and Environmental Safety and Emergencies established additional, more stringent conditions for city of Kyiv:
- to limit the holding of sports events in the city of Kyiv;
- to suspend the work of theaters, cinemas, museums, cultural events;
- to suspend the work of entertainment centers;
- to suspend the work of entertainment areas in shopping malls;
- to limit the holding of mass events on the territory of Kiev (with the participation of more than 60 people),
- only persons who have passed thermometry are allowed to participate in events;
- to ensure that workers of enterprises and institutions of the city of Kiev with signs of infectious disease are not allowed to work.
If the rules regarding the educational institutions are clear, then the questions about the work of sports clubs and children’s sports sections are still remains.
According to the restrictions that were introduced in Kiev, if in the children’s sports section,that operates at the educational institution, 60 people do exercises at the same time – the section must be closed. However, sports sections are not directly indicated in the list.
The document says nothing about the work of sport clubs. However, Parliament regulation 4 p. 1 ends with the word “etc.”, therefore there is a risk,that sports clubs will also be closed during quarantine.
Non-compliance with sanitary rules and norms for the prevention of infectious diseases and mass poisoning Article 325 of the Criminal Code will lead to criminal liability – a fine of up to 100 tax-free minimum incomes of citizens (up to UAH 1,700), or arrest for up to six months, or restriction of freedom for up to three years.
In case of causing a death or other serious consequences – imprisonment for a term of five to eight years.
Legal regime of labor during the quarantine
According to Part 2 of Art. 18 of the Law of Ukraine “On Protection of Population from Infectious Diseases”, legal entities, regardless of its form of ownership, and citizens ensure that preventive disinfection measures are taken in residential, industrial and other premises (buildings) and on land plots owned by them or granted for use, other measures are taken to limit the number of rodents and insects in the premises (buildings) and on land plots.
Now large companies in Ukraine are preparing for the organization of work outside of offices.
Art. 34 of the Labor Code, which indicates that in the event of downtime, employees may be transferred, with their consent, taking into account their specialty and qualifications, to another job at the same enterprise, institution, organization for the entire period of downtime or to another enterprise, institution, organization, but at the same location on period up to one month. Downtime is the suspension of work caused by the lack of organizational or technical conditions necessary for the performance of work, by inevitable force or other circumstances.
Period of downtime, that happened through no fault of the employee, is paid at the rate of not less than two-thirds of the tariff rate for the category of the employee’s salary. The employee must notify the owner or his authorized body or team leader, craftsman or official servant of the onset of downtime, excluding the downtime of the structural unit or the entire enterprise. (Article 113 of the Labor Code).
In addition to downtime and maintaining normal working hours, you can offer at least three legal regime of labor organization during quarantine:
1.If an employee wishes to work during quarantine, but is not able to stay at the workplace whole day, then upon application he may be allowed to work on a part-time basis (Article 56 of the Labor Code).
Moreover, at the request of a pregnant woman or a woman with children under the age of 14 years or a disabled child, and persons raising young children without a mother, the employer is obliged to establish part-time work for them. For other categories of workers, part-time is established by agreement between the employee and the employer. This is indicated in the letter of the Ministry of Social Policy №242/13/116-16 of April 29, 2016.
2.According to his statement, it is possible to establish a flexible working time regime for employees at the time of quarantine
A flexible working time regime is a form of labor organization in which for certain categories of workers, for employees of individual enterprises or their structural divisions, a labor regime is established with self-regulation of the start, end and duration of working hours during the working day (Article 13 of the Labor Code, Art. 7 of the Law of Ukraine “On Collective Bargaining and Agreements”). At the same time, one should adhere to the Methodological recommendations for establishing a flexible working time regime.
3.Another variant is work at home. Convention No. 177 indicates that work at home means work that a person, called a homeworker, performs:
- at the place of his residence or in other premises of his choice, but not in the production premises of the employer;
- for reward;
- for the purpose of producing goods or services, according to the instructions of the employer, regardless of who provides the equipment, materials or other resources used.
The Regulation on the work of homeworkers indicates the categories of workers who have the priority right to work at home. This list include:
- invalids and pensioners;
- full-time workers;
- workers located far from the place of work.
Homeworkers are paid for the work actually performed, a time sheet for such workers is not kept.
Work at home is also provided by in Art. 179 of Labor Code for persons caring for children under three years of age.
Vocation during quarantine
For care of a child under the age of 14, the mother or father of the child, grandparents, or other relatives actually caring for the child, or the person adopting the child, one of the foster parents and foster parents are obligatory granted unpaid leave for the period of quarantine announcement in the relative territory (clause 3-1 h. 1 of Art. 25 of the Law of Ukraine “On Leaves”).
Another option is provided by Art. 18 of this law. At the request of the woman, after the end of maternity leave, she is granted the leave to care for the child before reaching the age of three, with payment for these periods of benefits under the legislation.
This leave may be used in full or in part also by the child’s father, grandmother, grandfather or other relatives who are actually caring for the child, or by the person adopting or taking care of the child.
If the employee wants to receive leave during the quarantine period, he must submit an application for such leave, with a copy of the child’s birth certificate and a document certifying the employee’s status (application of the employee for granting unpaid leave for the period of quarantine announcement).
After reviewing the vacation application and the documents attached to it, the employer is obliged to issue an order to grant the leave (order to grant the employee the unpaid leave for the period of quarantine / granting the employee the leave to care for the child).
Unpaid leave is granted for the period of quarantine in the corresponding territory. Since the entire period of quarantine can last several weeks and, if necessary, can be continued and introduced for several times during the year, such leave can be extended and granted as many times as the relevant events will take place during the year.
However, there are other options to register the absence of parents of young children at the workplace during quarantine. So, you can issue:
- a certificate of incapacity for work if the child gets ill during the quarantine period;
- annual leave, as well as additional leave to employees who have children or an adult child with disabilities since childhood, subgroup A of group I (Article 19 of the Law of Ukraine “On Holidays”), if they are entitled to it;
- unpaid leave for a duration of up to 15 calendar days is granted by agreement of the parties (Article 26 of the Law of Ukraine “On Holidays”).
At the same time, in a letter dated April 29, 2016 No. 242/13 / 116-16, the Ministry of Social Policy explains that employers, at their own expense, can establish additional labor and social benefits for workers. In particular, other types of paid vocations or vocations of longer duration than established by law, under the conditions specified in the collective agreement.