Workers' Rights During State of Emergency

The Armenian Unified Information Center has disseminated information on its Facebook page. Considering that the state of emergency declared in Armenia since March 16, 2020, has raised several questions regarding the existing regulations of labor legislation in this situation, as well as the measures being implemented by the Ministry of Labor and Social Affairs to fill the existing gaps, we inform you:

According to Article 107, paragraphs 1 and 2 of the Labor Code:

• Non-fault layoffs are situations at the workplace when the employer, due to production or objective other reasons, is unable to provide the work specified in the employee's employment contract.
• During layoffs, the employer has the right to transfer the employee, with their written consent, to any other work considering the employee's specialization, qualification, and health condition. With the employee's consent, they may also be transferred to other work without considering their specialization and qualification.

On the other hand, according to paragraph 1 of Article 186 of the Labor Code, if, during non-fault layoffs, the employee is not offered other work that corresponds to their specialization and qualifications and that they could perform without causing harm to their health, then the employee is paid for each hour of layoff at the rate of two-thirds of their average hourly wage prior to the layoff, but no less than the minimum hourly rate established by law.

According to paragraph 6 of the same article, no payment is made for layoffs caused by unavoidable circumstances as defined by the legislation of the Republic of Armenia.

Recent developments have shown that some employers adhere to the regulations of paragraph 1 of Article 186 and pay their employees, while others follow paragraph 6 of the same article and do not pay at all. It is evident that in the current situation, a unified approach is necessary to avoid potential labor disputes in the future and to prevent the issues from being resolved through legal means.

Given the extension of the state of emergency in Armenia, with the aim of making certain amendments to various other provisions of the Labor Code, the Ministry of Labor and Social Affairs has developed and urgently launched a draft to amend the Labor Code. Specifically, the draft proposes:

• In case remote works can be organized, to not consider employees as being on layoff, and to retain their full salary.
• Not to consider remote work organization and changes to work and rest regimes as a substantial change in the employment contract, which will allow employers to be more flexible and not notify in advance about these changes.
• In cases where private sector employers, due to the state of emergency, can no longer continue work, including remotely, to still pay the employee for each hour not worked at least at the minimum hourly rate established by legislation. Salaries of employees funded from state and local budgets, as well as employees of the Central Bank of the Republic of Armenia, will be fully preserved.
• In cases where the employee has unused vacation, and it is not possible to continue work during the state of emergency, to require the employer to, if the employee wishes, grant their unused vacation.
• In cases where the employee objectively has not been able to present themselves to work or has arrived late or on a partial workday, to prohibit the employer from unilaterally terminating the employment contract or applying disciplinary sanctions.
• In such cases, to provide remuneration at least according to the employee's actual hours worked or the actual work performed.
• In cases where, during unplanned relocation or provision of vacations for educational (including preschool) institutions, the employee arrives late or on a partial workday to organize childcare, to prohibit the employer from unilaterally terminating the employment contract or applying disciplinary sanctions. In these cases, full remuneration should be provided.
• To stipulate that during the state of emergency, overtime work within two consecutive days can total up to 8 hours instead of the current 4.
• Transitional provisions will also stipulate that the aforementioned regulations will apply to employers and employees from March 16, 2020, when the state of emergency was declared.

It should be noted that many proposals presented in the draft stem from the fundamental principles of the Labor Code (Article 3), particularly the provision of the right to fair working conditions for every worker and the right to timely and full remuneration for work, not less than the minimum wage set by law.

At the same time, addressing the opinions expressed in recent days about the absence of a need to amend the Labor Code regarding the organization of remote work, as the relationships associated with work and remuneration for remote workers are already regulated by the Labor Code, particularly Article 98, we inform you that under the existing regulation, the workplace is considered an essential condition of the employment contract, and in the case of changes, the employer is obliged to notify the employee in advance according to their tenure (Article 115, paragraph 1 of the Labor Code).

Taking into account that during a state of emergency, the employer needs to respond quickly to the challenges and organize work remotely whenever possible, the draft proposes that in this situation, organizing remote work should not be considered a change of workplace.

Regarding the fact that remote work is already regulated by Article 98 of the Labor Code, we note that this article pertains to cases where, from the outset, an employment contract has been concluded between the employer and employee regarding work to be performed from home. During a state of emergency, an employment contract for remote work is not concluded; rather, the workplace is simply changed.

Therefore, it is incorrect to identify the regulation intended for remote workers with the regulation of remote work organization.

We also inform you that the Ministry of Labor and Social Affairs is authorized to resolve issues arising between the employee and the employer within the framework of developing legislative regulations and providing clarifications. The Ministry does not have the authority to intervene in the employment relations between the employee and the employer within the scope of its powers.