The realities of Ukrainians today are as follows – we hear the air raid siren almost every day and are forced to stop work, treatment, study, rest and hide in shelters. However, even in extreme conditions, it is necessary to adhere to the norms of labor legislation. One of the main questions that worries many employees is: is this time paid and how to properly arrange it?
In the article, the expert explains how the law regulates payment for time spent in shelter, what documents you should have, what the employer and employee should pay attention to, and how to avoid disputes and violations.
Is time in shelter during an air raid alert paid?
Yes, it is paid. Staying in shelter is a forced break through no fault of the employee, so it is counted as working time. The law does not have separate regulations for this case, so the general rules of labor law apply.
There are two main payment options:
- Full payment (as for a regular working day) – if the employee continues to work (for example, on a laptop or on a phone). Some companies pay for a full day even without working in shelter – to simplify accounting.
- Payment for this period as downtime – when the employee cannot work. In this case: minimum – 2/3 of the salary (downtime not due to the employee's fault); or preservation of average earnings if the situation threatens life or health.
It is worth noting that the positions of the State Labor Service representatives differ: some insist on paying 2/3, others - on average earnings. In early July, the Ministry of Justice also confirmed: if it is impossible to work in shelters - this is a layoff through no fault of the employee, and should be paid as average earnings. If the employee has the opportunity to work remotely even during an air raid - the salary is accrued as for regular working hours.
A collective agreement may provide for higher pay for downtime.
When can an employer not pay for time in shelter?
If it is a scheduled workday, the employer is required to pay for the time spent in the shelter.
They are not paid only when the employee:
- is on vacation;
- on sick leave;
- or on another day when he wasn't supposed to work.
- Does it matter whether an employee works offline or remotely for the purpose of paying for time in shelter?
Yes, in certain cases it matters. According to Art. 60-2 of the Labor Code of Ukraine, a remote worker:
- chooses his/her own place of work;
- works using digital technologies;
- is personally responsible for the safety of working conditions;
- has a flexible work schedule (unless otherwise provided for in the contract).
The remuneration of a remote worker is determined by a written contract or by the manager's order (during martial law). Hourly, daily, monthly or piece-rate payment is possible.
Therefore, whether time in shelter will be paid depends on:
- forms of remuneration;
- terms of the contract or order;
- availability of reporting;
- the fact whether the employee was actually able to and did the work at that time.
What documents are needed to record time spent in shelter as working?
The law does not establish a clear list of documents - the employer determines the procedure himself. The most common documents:
- order/instruction on actions during an alarm and recording time in shelter;
- timesheet with appropriate marks;
- if necessary: log of stay in shelter, video surveillance, official notes.
If the time in the shelter is considered downtime, the start and end of the downtime should be formalized (usually by order). But constantly issuing separate orders is inconvenient, because you can't predict the alarm.
To avoid this, it is advisable to approve a separate local act - for example, a regulation/procedure, or to amend the internal labor regulations. This document should clearly define the procedure for action during an air alarm and immediately provide that:
- The time spent in the shelter for employees who cannot perform work there is considered downtime;
- the beginning and end of downtime is recorded in a special journal;
- It is not necessary to issue separate orders for each case of downtime.
This approach will simplify accounting and ensure correct documentation in accordance with the law.
How is time paid if an employee does not return after an alarm?
If the employee did not return from the shelter without a valid reason, and the employee's working hours according to the established regime have not ended, the employer has the right not to pay for this time, recording the absence as absenteeism or absence from the workplace.
In this case, the employer must:
- draw up an absence report;
- require a written explanation from the employee.
Important: absenteeism is more than 3 hours of absence without a good reason (Article 40 of the Labor Code).
Also, the employer may not pay for the employee's absence after the air raid siren is sounded if the employee is paid an hourly wage.
If work cannot objectively be continued (for example, there is no electricity or property is damaged), a layoff is issued with payment of at least 2/3 of the salary or in another agreed manner.
Can an employee claim compensation if they were not paid for this time?
Yes, if an employee was in a shelter during their working hours, they have the right to demand payment. First, you should contact your employer with a written statement.
If he did not receive a response or there was an unfounded refusal, the employee can file a complaint with the State Labor Service or go to court to collect salary arrears.
What should an employer do if air quality alarms are persistent and occur daily?
There are several legal options:
- Apply for a layover – with payment in accordance with Article 113 of the Labor Code.
- Introduce flexible working hours – according to Art. 60 of the Labor Code: fixed time – when the employee must work; variable time – the employee plans his/her own working hours; break – time for rest and meals.
- Switch to remote work – during martial law, this can be done by order without the employee's consent.
- Change the payroll system, for example: hourly pay; summarized accounting of working hours.
- Enter into an employment contract with unfixed working hours (Article 21-1 of the Labor Code) – an employee works only when there is work, and payment is accrued only for the hours actually worked.
All changes in work schedules or pay must be documented and in accordance with labor laws. This will help avoid violations and disputes.
Is it possible to prescribe the procedure for paying for time in shelter in a collective agreement or internal labor regulations?
Not only is it possible, but it is also worth doing so. In addition to the procedure for paying for labor during this time, other features of regulating the stay of employees in shelters should also be recorded. Such features may be:
- procedure for notification and actions of employees;
- recording time in shelter;
- the possibility of accruing/cancelling bonuses or additional payments for work in dangerous conditions;
- specification of payment for remote work during the pandemic and other issues.
Source: wake up robot
