Martial law cannot constitute grounds for absenteeism: the rules for dismissing employees will be revised for employers.

In Ukrainian labour legislation, there is an issue of inconsistent interpretation of the grounds for dismissing an employee for absenteeism. As a result, employers may apply the rule on dismissal for absence from work for more than three hours differently, while employees are forced to prove the validity of the reasons in court.

To address this situation, a draft law has been registered in Parliament proposing to clarify the provisions of Article 40 of the Labour Code of Ukraine and to establish the employer’s obligation to determine the validity of the reasons for absence before making a decision on dismissal.

As reported by «Sudovo-Yurydychna Hazeta», the draft law provides for a list of circumstances under which the reasons for an employee’s absence from work may be considered valid. These include situations where attendance at work was prevented by significant circumstances that could not be eliminated by the employee, including:

• fires, floods, and other natural disasters;
• accidents or transport disruptions (transport delays);
• military actions, including declared air raid alerts due to missile threats;
• performance of civic duties (providing assistance to victims of accidents, saving state or private property during a fire or natural disaster, etc.);
• caring for a suddenly ill family member;
• absence from work with the permission of a direct supervisor;
• absence due to health reasons, etc.

In particular, the draft law was analysed by the Research Service of the Parliament, which expressed comments regarding the proposed changes and potential risks of their practical application.

With regard to caring for a sick family member or absence due to health conditions, it should be taken into account that, in accordance with the Procedure for Issuing Certificates of Incapacity for Work, a medical conclusion is generated electronically and serves as the basis for issuing an electronic sick leave certificate. Information about such a certificate is transmitted to the employer through the information systems of the Pension Fund of Ukraine. In this context, additional clarification of medical grounds as valid reasons for absence from work appears unnecessary.

At the same time, the provision of the draft law recognising “military actions” as a valid reason for absence from work is subject to debate.

Martial law applies to the entire territory of Ukraine, poses a threat to life and health, and leads to restrictions on movement and the need to stay in shelters, which may result in an employee’s absence from work. Recognising military actions as a valid reason may be relevant for territories where active hostilities are taking place. Extending this provision to the entire territory of Ukraine may lead to potential abuse by employees.

In this regard, the Supreme Court, in case No. 552/7015/225, confirmed that the mere fact of the introduction of martial law is not automatically a valid reason for an employee’s absence from work, unless the individual impact of such circumstances on the impossibility of attending work is proven.

It should also be taken into account that, in accordance with Article 5 of the Law of Ukraine “On the Organisation of Labour Relations under Martial Law”, during the period of martial law an employee whose workplace is located in areas of active hostilities cannot be dismissed for absenteeism.

Separately, the “air raid alert” signal should be considered as an objective circumstance that may prevent an employee from being present at the workplace. According to Article 30 of the Civil Protection Code of Ukraine, public warning is carried out through a centralised alert system, and the “Air Raid Alert” signal is an official warning of a threat of attack. Under Article 21 of this Code, citizens are obliged to comply with the rules of conduct in emergency situations.

However, an employee’s absence from work with the permission of a direct supervisor may be recognised as a valid reason, as in such cases there is no element of a disciplinary offence.

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