April 21, 2021

Remote work and telework: features of application and regulation in the countries of the European Union and in Kazakhstan

1. Features of labor performance in Kazakhstan for the period of Covid-19: general overview
   • 1.1. Temporary disability certificate: procedure and features of issuance
   • 1.2. Compliance with the sanitary and disinfection regime
   • 1.3. Development of rules of conduct for workers in the workplace
2. Regulation of teleworking in the countries of the European Union
3. Regulation of remote work in Kazakhstan
4. Optimization of business processes in Kazakhstan without remote work

1.    Features of labor performance in Kazakhstan for the period of Covid-19: general overview

The Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan recommends that employers switch to remote work during the pandemic in order to avoid infection and spread of coronavirus infection. In addition, the decisions of sanitary doctors are not complete without mentioning the transition of a certain part of workers to remote work.

Most employers, through the issuance of an act on the transition to remote work, draw up a schedule for workers to go to work or, at all, send some of the workers to remotely perform work for an unlimited period.

A new phenomenon for the whole world, along with panic, also caused disorientation of society in: how the infection with coronavirus infection or being in forced quarantine would affect labor relations.

1.1. Temporary disability certificate: procedure and features of issuance

According to subparagraph 8) of paragraph 3 of the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated March 31, 2015 No. 183 “Rules for the examination of temporary disability, issuing a sheet and a certificate of temporary disability”, in case of quarantine, a certificate of temporary disability is issued.

Temporary disability certificate – a document certifying the temporary disability of persons and confirming the right to temporary release from work and receive benefits for temporary disability.

It follows from this that quarantined workers must receive a temporary disability certificate issued by an infectious disease doctor. In connection with the pandemic, a certificate of temporary disability can be issued without visiting a medical organization. Consequently, the medical organization provides the employee with a temporary disability certificate, and the employer, in turn, pays in the appropriate manner.

Medical organizations are also obliged to issue a temporary disability certificate to family members and / or persons who have come into contact with a person in quarantine. Employers, accordingly, must pay for the period indicated on the sheet of temporary incapacity for work.

According to part 1 of article 133 of the Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414-V (hereinafter referred to as the Labor Code), the employer is obliged to pay employees a social benefit for temporary disability at their own expense (note – no more than 15 MCI).

However, employers have the right to establish additional payments to employees in addition to the amount of social benefits for temporary disability established by the legislation of the Republic of Kazakhstan.

1.2. Compliance with the sanitary and disinfection regime

In accordance with article 80 of the Code of the Republic of Kazakhstan dated July 7, 2020 No. 360-VI “On people’s health and the health care system”, citizens (employees) are obliged to:

– subparagraph 1): to take care of the preservation of their health, to bear joint responsibility for the preservation and strengthening of individual and public health;

If an employee detects an elevated temperature or malaise, the latter should not come to the workplace, so as not to create a focus of infection at the workplace.

– subparagraph 7): observe precautions to protect one’s own health and the health of others, undergo examination and treatment at the request of medical organizations, inform medical personnel about their illness in case of infectious diseases and diseases that pose a danger to others;

In case of evasion of examination and treatment, citizens suffering from diseases that pose a danger to others are subject to examination and treatment compulsorily, in accordance with the legislation of the Republic of Kazakhstan.

– subparagraph 8): comply with the legislation of the Republic of Kazakhstan in the field of healthcare.

Foreigners and stateless persons who are on the territory of the Republic of Kazakhstan bear the same responsibilities in the field of health care as citizens of the Republic of Kazakhstan.

1.3. Development of rules of conduct for workers in the workplace

In order to avoid creating a threat of a hotbed of infection and in order to protect employees and the employer, employers are advised to develop rules of conduct for workers in the workplace (hereinafter referred to as the Rules) during the Covid-19 pandemic.

The rules may contain provisions that provide for the obligation of employees to comply with the conditions of the sanitary and disinfection regime at the workplace, the regular use of antiseptic substances, airing the room, and so on.

The employer is advised to identify a person in charge of monitoring compliance with the Rules.

According to subparagraph 41) of part 1 of Article 1 of the Labor Code, the Rules are an act of the employer. Accordingly, employees are required to comply with the employer’s act.

In accordance with subparagraph 1) of part 2 of Article 22 of the Labor Code, employees are obliged to perform labor duties in accordance with the acts of the employer. Familiarization of the employee with the employer’s act is possible not only in person, but also through the use of an electronic digital signature.

Employers should also prohibit workers from showing up for work if they have symptoms. A violation, that is, the appearance of an employee at the workplace, may be the basis for the imposition of a disciplinary sanction.

The Rules should provide for a provision stating that in order to minimize the infection of workers at the workplace, a transition to remote work is introduced. It is important to define a list of positions that will not be detrimental (note – at the level of efficiency of the production process) the transition to remote work.

Employers are encouraged to introduce a mixed regime of work with a clearly structured office visit schedule, when an employee does work remotely for only a certain period of time. However, there may be a problem in providing workers with software systems. In order to track working hours, employers are encouraged to establish an appropriate system for recording this task.

2.      Regulation of teleworking in the countries of the European Union

In the countries of the European Union, remote work is called “teleworking”. Legal relationships arising from the performance of telework by an employee are governed by the Framework Agreement on Telework, adopted on July 16, 2002 (hereinafter referred to as the Framework Agreement).

Teleworking is one of the forms of organizing and / or performing work using information technology in the context of an employment contract / relationship, where work, which can also be performed on the employer’s premises, is carried out outside these premises on a regular basis.

The framework agreement contains the following important aspects:

• voluntary nature of teleworking: telework is voluntary for the worker and the employer concerned. Telework may be required as part of a worker’s initial job description or it may be engaged in as a voluntary arrangement subsequently. In both cases, the employer provides the teleworker with relevant written information in accordance with Directive 91/533/EEC;
• employment conditions: teleworkers benefit from the same rights as comparable workers at the employer’s premises. These rights are guaranteed by applicable legislation and collective agreements. In order to take into account the particularities of telework, specific agreements may be necessary;
• data protection: the employer is responsible for taking the appropriate measures to ensure the protection of data used and processed by the teleworker for professional purposes. The employer informs the teleworker in particular of any restrictions on the use of equipment and of sanctions in the case of non-compliance;
• privacy: the employer respects the teleworker’s privacy. If any kind of monitoring system is put in place, it needs to be proportionate to the objective and introduced in accordance with Directive 90/270 on visual display units;
• equipment: as a general rule, the employer is responsible for providing, installing and maintaining the equipment necessary for regular telework unless the teleworker uses his/her own equipment. The employer has the liability, in accordance with national legislation and collective agreements, regarding costs for loss and damage to the equipment and data used by the teleworker;
• health and safety: the employer is responsible for the protection of the occupational health and safety of the teleworker in accordance with Directive 89/391and relevant daughter directives, national legislation and collective agreements. In order to verify that the applicable health and safety provisions are correctly employed, the employer, workers’ representatives and/or relevant authorities have access to the telework place, within the limits of national legislation and collective agreements. If the teleworker is working at home, such access is subject to prior notification and his/her agreement. The teleworker is entitled to request inspection visits;
• organisation of work: within the framework of applicable legislation, collective agreements and company rules, the teleworker manages the organisation of his/her working time. The workload and performance standards of the teleworker are equivalent to those of comparable workers at the employer’s premises;
• training of teleworkers: teleworkers have the same access to training and career development as comparable workers at the employer’s premises and are subject to the same appraisal policies as these are their workers. Teleworkers receive appropriate training targeted at the technical equipment at their disposal and at the characteristics of this form of work organisation;
• the collective rights of teleworkers: teleworkers have the same collective rights as workers at the employer’s premises. No obstacles are put to communicating with workers’ representatives.

3.      Regulation of remote work in Kazakhstan

Often, many consider the concept of working from home and remote work to be identical. We propose to understand the differences between these concepts.

According to Article 138 of the Labor Code: remote work is a special form of the implementation of the labor process outside the employer’s location using information and communication technologies in the process.

This leads to a logical question: Will the employer be able to provide the employee with information and communication technologies (we are not talking exclusively about computers or laptops).

According to paragraph 2 of Article 138 of the Labor Code, the employer provides the employee with means of communication and bears the costs of their installation and maintenance. In the event that an employee uses his own means of communication on an ongoing basis, the employer pays compensation, the amount and procedure for payment of which is established by agreement with the employee.

By agreement of the parties, the remote worker may also be reimbursed for other expenses related to the performance of work for the employer (the cost of electricity, water and other costs).

The amount of compensation must be determined in a supplementary agreement to the employment contract.

If the employer concludes an employment contract with employees for remote work, it is recommended not only to develop a special provision on remote work, but also rules (instructions) for performing remote work in order to avoid accidents.

The need to develop instructions is due to the fact that in the event of an accident with an employee performing remote work, it is extremely difficult in practice to determine the qualifications of the case and the responsibility of the employer. Moreover, the employer minimizes the possibility of actually arriving at the scene of the accident.

It is important to indicate in the instructions that when performing official duties during the working hours, the employee is prohibited from performing personal affairs that are not related to the performance of the work specified in the contract.

For workers engaged in remote work, a fixed record of working hours is established, the control features of which are determined in the employment contract.

In accordance with paragraph 1 of Article 79 of the Labor Code, the employer is obliged to keep records of the working time actually worked by the employee.

Employers are encouraged to develop and install system software that acts as a timer. However, the timer should reflect not only the actual activity, but also the amount of work performed.

In cases where the employee’s working time includes periods of work performed outside the workplace or their performance cannot be recorded by the employer at a specific time, we recommend that these periods be noted in the working time records as the fulfillment of the scope of work established by the employment contract.

One of the important aspects that is often neglected in practice is the size of wages. For example, when the act is issued, the employer sends workers to remote work with the condition that only 50% of salary are paid. However, this action is a direct violation of the law.

For teleworkers (remote work), salary must be paid in full.

Work carried out by workers outside the office, as well as by default, due to the Covid-19 pandemic, is not remote work. Accordingly, remoting work regulations do not automatically apply to employers who work from home.

When working remotely, there is a change in the regime and place of work. Moreover, an important basis is the indication of the condition (remote work) directly in the employment contract or additional agreements to the employment contract. Also, the employment contract must regulate the conditions for additional compensation to the employee.

4.      Optimization of business processes in Kazakhstan without remote work

In order to optimize business processes for enterprises in which it is impossible to implement remote work, we offer the following solutions to the issue:

(i) establishing part-time working hours and developing a shift schedule for employees;

(ii) sending employees on vacation – paid (if there are vacation days) or unpaid. Of course, sending employees on paid holidays can negatively affect the financial component of the employer, since production will not work to its full extent, and the company’s budget will decrease due to vacations. Unpaid leave is only possible with the consent of the employee.

If the employee does not agree to take an unpaid vacation, the employer is obliged to pay the employee for the downtime caused for reasons beyond the control of either the employer or the employee. The amount of downtime payment must be determined by labor, collective agreements and must not be lower than the minimum salary;

(iii) optimization of jobs (reduction). The employer is obliged to notify employees 1 (one) month in advance and it is recommended not to hire employees for reduced positions during the next year;

(iv) termination of an employment contract.

Thus, summarizing the above, it should be noted the importance of awareness of employees and employers about the conditions and procedure for remote work. Not every work from home is remote work. Before sending an employee to remote work, the employer needs to issue an act, familiarize the employee with the act (you can also use an EDS), amend the employment contract by concluding an additional agreement and determine the amount of compensation for the employee’s expenses. As noted above, we strongly recommend employers to issue appropriate rules (instructions) for teleworking and reflect safety aspects, having received a mark from employees about familiarization with the rules.