Theses on non-working days
Instead of a preface
Previously, one could joke about the ideal “2 through 5” mode of operation. You work for two days and rest for five days. In April 2020, it was no laughing matter, the working hours for many workers who worked in 40-hour work mode, according to the new production calendar, were reduced from 175 hours per month to 0.
For whom the new production calendar is valid
Not for everyone – the “old” production calendar is valid for employees of certain organizations. I will not quote the lists of organizations for whose workers the new production calendar is not valid – it is better to look at these lists in the original – in the Recommendations and Supplement to the Recommendations of the Ministry of Labor. Also, the authorities of the regions have been delegated the authority to independently determine which enterprises will continue to operate without changes, so it is worth following the regional regulatory framework.
Now all workers can be divided into three categories – those who “work” according to the new production calendar, in which there are 0 working hours in April, those who work according to the “old” production calendar, in which there are 175 working hours, and those who, according to the new production calendar, are not supposed to work, but, due to production necessity, they have to work constantly or occasionally.
How to pay those who do not work, as all days in April are non-working
Let’s remember the non-working days during the New Year celebrations. The number of working days and hours in a month is significantly less than in other months, but the amount of wages, for example, for employees with time wages, remains the same. There was no situation similar to that in April 2020 in the practice of applying labor law, but following the logic of the application of the Labor Code, the employee must receive full monthly wages, even if he worked 0 hours, as prescribed by the changed production calendar.
How to pay wages to those who work on non-working days
An important point is that there is no concept of “non-working days” in labor law. In the Labor Code, there are two types of days when an employee has the right not to work – “weekends” and “non-working holidays”. Work on these days involves double wages or single wages with the provision of an additional day of rest; the current legislation does not provide for other options. The recommendations of the Ministry of Labor introduce a new reality – “non-working day”, which, I quote, “does not apply to weekends or non-working holidays, therefore, payment is made in the usual, not increased amount”. Following the Recommendations, an employee for whom a production calendar is in force, in which there are no working days in April, but the employer still brought him to work, can be paid in a single amount for working hours on non-working days. Considering that the Recommendations of the Ministry of Labor are not a normative legal act, such a practice would be a direct violation of the Labor Code. But since the department that oversees the implementation of the law itself recommends violating it, I see no reason not to follow its recommendations – apparently, there will be no fine for non-payment of labor on non-working days in double the amount of the GIT. It is possible that after the end of the pandemic, someone will go to court demanding to pay double the amount for work on non-working days, but the courts are unlikely to satisfy such claims.
How to deal with vacations
In the recommendations of the Ministry of Labor, there is such a difficult to understand phrase – “If an employee is on vacation, then non-working days from March 30 to April 3, 2020, are not included in the number of vacation days and the vacation for these days is not extended.” The first part of the phrase can be understood as the fact that if vacation days fell on days declared non-working, then such vacation days are not spent. This logic is provided for by the current Labor Code – non-working holidays falling on the period of the annual main or annual additional paid leave are not included in the number of calendar days of leave,” however, we are talking about non-working holidays. The second part of the phrase – “vacation for these days is not extended” can be interpreted as the fact that after the end of non-working days, for example, at the end of April, the employee will not be able to extend the vacation – in this case, the vacation days will be considered unused, and the employee will be able to use them later … The logic of the Ministry of Labor is clear – I would like to prohibit employers from providing employees with leave for the period of non-working days and postponing them for a while after the end of non-working days. The logic, let’s say, is controversial, perhaps that is why the Ministry of Labor in the “Questions and Answers on the organization of work and observance of the rights of workers during the non-working week” said that “At the request of the employee, the employer has the right to grant leave for this period.” So the Ministry of Labor does not prohibit the use of annual holidays during non-working days.