COVID-19 related travel restrictions have meant thousands of expat experts are not able to re-enter their countries of work or residence, including Russia. The current situation has divided families, slowed down business and required a prompt response from the legal community. This article provides a summary of the main difficulties and potential solutions for employers in Russia, as well as local perspectives on similar situations from around the globe offered by lawyers from the Ius Laboris network.
Expat employment during the pandemic: a challenge for employers
From the point of view of existing restrictions, one of the problems faced by all companies with expat experts is how to formalise new forms of interaction with foreign employees, taking into account their actual absence from the region where they usually work or their obligation to stay in their place of residing without the possibility of visiting the office.
The most obvious solution in this case is to switch to the remote employment regime, but this option would work only if the job title and functions remain the same since each work permit is granted for a specific targeted job title.
Another common problem is the situation when a foreign employee finds him or herself in self-isolation in one of the regions of Russia in which the work permit is not valid. From a regulatory point of view, a foreign employee can only work in the region of Russia in which the work permit they hold is valid. The only exception is short-term business trips, and it is important that all documents confirming the business trip are prepared correctly and on time. Violation of this rule can lead to major administrative problems for both the foreign national and the employer.
In practice, the key solution to this situation is to formalise the period of self-isolation of a foreign employee as a period of absence from work.
On top of the above, most expat experts working in Russia have special migration status as highly qualified foreign nationals (‘HQS'), which implies certain obligations for the employer. In particular, according to Russian law, an employer is obliged to pay to a HQS a monthly salary of not less than RUB 167 000 irrespective of the actual time worked in the particular month. Russian law also obliges employers to provide the migration authorities with a quarterly notification confirming that the HQS received at least RUB 167 000 for each of three months in the quarter in question. Hence, even if expat experts were not able to fulfill their job functions during the lockdown period, employers were obliged to keep paying their salaries.
The solution for this, based on the explanations from the state authorities, is to keep the quarterly salary level at a statutory minimum level, even if the actual contractual salary is much higher.
Maintaining valid immigration status
Many foreign employees, regardless of their actual location during lockdown, faced a situation where their migration permits had expired. Those who ended up outside of Russia were less fortunate: their permits expired, and the possibility of extension without coming to Russia was completely suspended for a long time. The migration authorities only approved remote submission of documents for updating migration permits at the end of summer 2020. At the same time, expiry of a work permit is a ground for termination of the employment contract with a foreign employee. Simply speaking, companies could not keep foreign employees with expired work permits on board and had to remotely terminate their employment.
For those who remained under lockdown in Russia, the situation was somewhat better. In particular, according to Russian presidential decrees, the validity period of migration documents for all foreign nationals legally resident in Russia, has automatically been extended several times if they expire between 15 March and 15 December 2020. In practice, this means that these foreign nationals maintain their legal status and either have the possibility of leaving Russia legally or of prolonging their permission to remain in Russia.
Next steps: returning to legal employment
In order to be able to return to Russia or to apply for new permission to work in Russia, taking into account gradually opening borders, foreign nationals and their employers need to obtain a permit from the sectoral ministry (in charge of the industry or the area of the company's activity). This permission is single-use and does not give a right to multiple border crossings.
This ad hoc migration rule creates challenges for employers since there are no obvious criteria revealing to which ministry a particular company should apply.
One way to determine the appropriate sectoral ministry is to choose it based on the main type of company's activity according to the OKVED (all-Russian register of economic activities).
Mostly, Russian borders are still closed for almost all countries. There are some exceptions, such as the United Kingdom; Switzerland; Turkey; Tanzania; Egypt; Cuba; Japan, etc. People arriving from these countries are exempted from the mandatory two-week COVID-19 self-isolation. However, a negative COVID-19 test is still required. A negative test result is also needed to obtain new migration permissions, such as a work permit. Foreign citizens from ‘opened' countries are also exempt from the obligation to obtain permission to work from the sectoral ministry.
Migration remains one of the most rapidly changing areas during the pandemic. Despite all the difficulties, migration authorities are trying to create flexible regulation as much as possible, striving to find a balance between the obvious risks and community needs. The role of employers is to be informed and to be ready to react promptly to any developments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.