Expectations for positive turns in many spheres of life, both commercial and social, have sprung at the arrival of COVID-19 vaccination. One of the popular questions is whether vaccination could change the current preference for working remotely (even as we see gradual easing of the remote work requirement in Russia) or whether it would be required as a condition to work in office. In this LawFlash we address whether an employer can require employees to vaccinate, whether the employee can seek to discontinue remote work following vaccination, and related matters.
Generally, under Federal Law No. 157-FZ of 17 September 1998 “On Immunological Prevention of Infectious Diseases” (the Vaccination Law) vaccination in Russia is voluntary and no one can be forced to take it. Further, as a general matter, the vaccination may not be a precondition for employment or mandate a change of the employment terms. This law does not contain any specific rules associated with the COVID-19 pandemic.
The exception to the above rule relates to a limited number of occupations associated with the high risk of contracting and communicating an infectious disease. Such occupations are listed in the Russian Government Decree No. 825 of 15 July 1999 (the Occupation Decree) and include, for example, work with infectious disease patients or in educational organizations.
An employer may refuse to hire for such a job or suspend an employee from work in the absence of vaccination against a disease (diseases) listed in the so-called "national calendar of prophylactic vaccination." Vaccination against COVID-19 has been recently listed in the epidemiological section of this calendar, i.e., where the decision on vaccination is taken by the chief medical sanitation officer of the Russian Federation or its constituent subjects based on epidemiological situation in the country or in the relevant territory (Art. 10 of the Vaccination Law). No such decision has been taken at the federal level, and as far as we are aware, at any regional level.
Closing several months of legal limbo, in December 2020 the Russian Labor Code was amended to reflect the real-life patterns of remote employment adopted by businesses in response to the pandemic effects and following the directives of the government.
Generally, under the amended Labor Code, a remote working regime can be established by an employment contract (or an addendum to it), which means that it requires the consent of both employee and employer. As an exception from this rule, the Labor Code Art. 312.9 envisages that an employee may be transferred to remote work without consent in case of emergency (such as natural disaster including epidemics) and/or a government directive, and only temporarily (the remote work regime duration may not exceed the circumstances which caused the transfer to remote work).
The amended Labor Code does not refer to mandatory or voluntary vaccination as a trigger for discontinuation of the remote work regime or otherwise.
The following conclusions can be drawn from the above legal provisions:
This is currently a very dynamic area of law and practice. Local authorities incentivize vaccinations by various means. For example, the Moscow Mayor reactivated free public transport passes for vaccinated people over 65 years or with certain listed chronic diseases (see item 3 of Mayor of Moscow's Decree No. 68-UM of 8 June 2020, as amended). Recently, the reactivation was extended to all people eligible for free public transport transit, regardless of vaccination.
Discussions are being held (at the federal government level, and in some local governments) on the possibility of introducing electronic certificates (including in the QR-code form) or “COVID-19 passports” to those vaccinated. Such documents could allow the holder to avoid travel and other restrictions. However, this idea has not gained universal support, and no legislation in this area has been developed, as far as we know. Thus, it remains to be seen if more promotional measures may be taken in the area of employment regulation soon.
In general, non-Russian (foreign) employees arriving in Russia must have medical document (in Russian or English) confirming the negative result of a laboratory study of the material for COVID-19 by the polymerase chain reaction (PCR) (a Test Confirmation) taken not later than three calendar days prior to arrival. They must also stay isolated (in a hotel or other destination of arrival) for 14 days before they can visit other places (see item 6.1 of decree of the Russian Federation Chief Sanitary Doctor No. 9 "On Additional Measures to Prevent the Spread of COVID-2019", of 30 March 2020).
Employment of foreign nationals is regulated by the Federal Law On Legal Status of Foreign Citizens in the Russian Federation (the Foreign Citizens Law). In general, a foreign national can work in Russian only with a work permit (certain exceptions apply).
Under the Foreign Citizens Law and related legislation, a foreign employee is generally required to confirm the absence of certain highly infectious and uncurable diseases, to receive work or permanent residence permit (as well as certain other immigration related papers), or to maintain it. On 15 June 2020, COVID-19 became listed among such diseases. If interpreted literally, a foreign employee with a confirmed COVID-19 cannot receive a permit or may be deprived of it. Since COVID-19 is a curable condition, the applicability of this rule in a COVID-19 situation sparked debates.
Helpfully, in August 2020, the Russian Ministry of Interior Affairs explained that since COVID-19 is a curable condition, when deciding to annul a work or permanent residence permit, a foreign national’s current health condition must be taken into account and the foreign national must be given more time to present a Test Confirmation to obtain or keep the permit. A proof of COVID-19 vaccination is not required.
After a foreign employee has entered Russia and stayed isolated, the employee can be allowed to work provided the employee presented to the employer a Test Confirmation taken not later than three calendar days prior to arrival in Russia, as required by decree of the Russian Federation Chief Sanitary Doctor No. 7 of 18 March 2020, “On Ensuring the Isolation Regime to Combat the COVID-19 Spread.” Again, proof of COVID-19 vaccination is not required.
Notably, in the recent past and in certain instances, a foreign national may have been required to prove that she or he was vaccinated against measles. But there has been no requirement to prove vaccination against COVID-19.
Finally, the Russian Labor Code generally applies to all employees working in Russia irrespective of their citizenship. Therefore, at present, similar to the rules applicable to Russian employees, in general, an employer may not require that a foreign employee take COVID-19 vaccination, whether as a condition of being employed, keeping the job, or of working in the office.
Still, the situation is very fluid, and it remains to be seen how it will evolve.
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We hope that you find this LawFlash useful. If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the following Moscow-based lawyers: Vasilisa Strizh, Alexander Marchenko, and Bela Pelman.