A state of emergency was announced by Edict No. 285 of the President on the entire territory of the Republic of Kazakhstan from  March 16 until  April 15, 2020.

The introduction of a state of emergency, the consequent quarantine and other relevant measures of a restrictive or prohibitive nature have affected labor relations between employers and employees. In particular, since the introduction of the state of emergency, many employers have encountered problems with continuing to employ their employees.

On March 16, 2020, during an online briefing, Birzhan Nurymbetov, Minister of Labour and Social Protection, gave explanations/recommendations to employers regarding possible scenarios for continuing labor relations with their employees (which included the preservation of jobs, the introduction of remote work, part-time work and downtime or drastic measures, such as downsizing or staff redundancy).

A number of possible options for organizing the labor activities of employees in the emergency situation, as provided for by the Labour Code, are discussed below.

1) Remote work

This enables work outside the employer's location using communications tools. The advantages of remote work are that an employee performs their job and receives their salary in full. The disadvantage is that not all categories of employees (e.g., those employed directly in production) may be able to perform work remotely. An employee and an employer have to agree on the conditions of remote work such as work scope and timing and establish a fixed record of working time by signing a supplemental agreement to the existing employment contract.

2) Vacation

Not all employees may be fully occupied when offices are closed during the state of emergency (such as secretaries, security service personnel). In this regard, an employer may offer such employees the opportunity to use the accumulated days of paid annual labor leave or take unpaid leave. Certainly, each case should be considered separately and be dealt with individually.

3) Change in working conditions

The Labour Code allows a change in working conditions due to a reduction in the amount of work of an employer, such as the introduction of a part-time regime and a reduction in salaries. In such a case, it is necessary to comply with the conditions and procedure for changing working conditions, since any non-compliance may give rise to disputes with employees who refuse to continue working due to the changes in the working conditions. 

4) Downtime

Downtime is defined as the temporary suspension of work for economic, technological, organizational or other industrial or natural reasons. Consequent to the introduction of the government measures of a restrictive and prohibitive nature, many companies and individual entrepreneurs may be forced to suspend their activities, which may entail downtime for employees. The Labor Code provides for the payment of downtime for reasons beyond the control of the employer and the employee, in an amount not lower than the minimum salary.

5) Downsizing or staff redundancy

Suspension of activities, reduction in the scope of work/services or closure of certain business units may lead to downsizing or staff redundancy. This procedure should be carried out in full accordance with the labor legislation and internal documents of the company, which may contain special additional terms. Furthermore, certain categories of employees (for example, pregnant women, women having children at the age up to three years) may not be dismissed on the grounds of downsizing or staff redundancy. We recommend proceeding with this option in exceptional circumstances if the above options are unavailable. 

6) Negative consequences of violation of labor legislation

In general, any act of an employer adopted with the aim of implementing the above measures may be invalidated and canceled in the case of a violation of the applicable order and procedure or, if there were no legal grounds for the adoption thereof. Therefore, it is vital to make sure that an act adopted by an employer has a legal basis and meets all applicable requirements for its issuance.

Employers may also be held liable in the form of administrative fines for an unlawful staff redundancy, full or partial non-payment of salaries, forcing employees to agree to unfavorable working conditions or discrimination (disproportion in the amount of salaries in the state of emergency). Moreover, if the Court invalidates and repeals the employer's act on downsizing or staff redundancy, the court will obligate the employer to reinstate the illegally dismissed employees in their previous positions and to pay the average earnings to such employees for the period of forced absence (but not more for six months). Thus, the unlawful acts of an employer regarding “cost optimization” adopted due to the state of emergency may create a threat of future litigation and increased costs.

In this regard, before proceeding with the implementation of any of the above scenarios, it is very important to study and subsequently follow the procedures applicable to a relevant scenario. This will ensure respect for the rights of employees and eliminate negative consequences, such as labor disputes with employees or Court cases holding the employer liable. We will be happy to answer your questions on the above options.