The term “work necessity” is often used by employers to justify the performance of extracurricular urgent or emergency work that was not foreseen in advance. But, meanwhile, this term is absent in the new Labor Code of the Russian Federation and, moreover, it contains a direct prohibition of attracting employees to work on weekends and holidays.
When working on weekends does not contradict labor laws
In the labor law that was previously applied, production necessity was defined as work outside school hours or with a transfer to another workplace, on the implementation of which the normal activities of the enterprise or its individual divisions depended. If such a need arose, the management of the enterprise had the right to transfer employees to those jobs that were not specified in their job responsibilities or employment contract. At the same time, the refusal of an employee without a valid reason for such a transfer was considered a violation of labor discipline.
Article 113 of the current Labor Code of the Russian Federation contains a direct ban on attracting employees to work on weekends and holidays. This article provides a list of exceptional cases where this becomes possible. These include, in particular, the performance of work related to the prevention of disasters, industrial accidents, accidents, as well as damage and destruction of property and material values. It is allowed to carry out overtime work and work not specified by official duties, and in cases of the introduction of a state of emergency or martial law, emergency circumstances, disasters or others, when there is a threat to life or its normal conditions for the entire population or only part of it.
In cases when it is necessary to urgently perform work on which the normal activity of the enterprise depends, the involvement of employees is possible only with their written consent. At the same time, disabled persons and women who have young children under 3 years of age should not be involved in the performance of these works. Even if these categories of employees have agreed to participate in such work, they need to be familiarized with this provision of the law, which gives the right to refuse them.
How to avoid litigation
When attracting employees to work on weekends and holidays, in accordance with Articles 72.1 and 72.2 of the Labor Code of the Russian Federation, it is necessary to be guided by the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation." It says that it is the employer's responsibility to prove the existence of circumstances that allow employees to work outside of working hours. Such work should not be contraindicated to the employee for health reasons and should be performed only under the condition that the labor safety requirements are met. In the event that an employee will have to perform work involving lower qualification requirements, he must confirm his consent to perform them in writing. Only if all the requirements of the law are met, absenteeism or refusal of an employee to fulfill it is considered absenteeism or a violation of labor discipline.
