Considering the ongoing martial law in Ukraine and frequent air strikes in various parts of the country, more and more employers are becoming concerned about whether they should adopt measures to protect their personnel or provide shelter, and what the liability if these obligations are not fulfilled would be.
Currently, private companies are not obliged to have a shelter. Respectively, there is no penalty for its absence. In case of danger, employees may use the closest publicly-allocated shelters or places suitable for their protection.
There are no specific requirements in terms of accessibility and location of such public shelters either. Still, based on State Building Normative B.2.2-5-97, there needs to be a shelter within a 500-meter radius. Though such a requirement is not directly correlated with the employer’s duties, if an air strike causes injuries or death of employees en route to shelters further than 500 meters from the employer’s location and the employees were traveling there under the employer’s instruction, such an instruction may be recognized as endangering the employees.
Thus, it is reasonable to include such shelters in the relevant evacuation plan only as additional options among other more practical options, if any, for employees to choose from (alongside the demand to stop working immediately and to go to the closest safe place). Also, the employer must not demand employees to go to premises that are not suitable for their protection.
There are no rules for evacuation times either. However, it should be done as soon as possible after the air raid alarm goes off.
Regardless of the above, employers have other obligations – e.g., installing an air raid alarm system, developing a plan/instruction for reactions to air raid emergencies, and conducting trainings for employees.
First of all, employers with a “mass presence” of people (as defined under established criteria) are obliged to ensure that the air raid alarm is functioning and is available to all employees present at the premises and cannot disconnect these channels/systems or dismantle them (according to Clause 25 and Clause 26 of the Regulation of the Cabinet of Ministers of Ukraine No. 733 dated September 27, 2017).
Second, the employer cannot prevent employees from evacuating and the employer cannot demand employees to continue their work in case of an air strike danger. Such actions not only will be grounds for employees to file a claim with state authorities but also may result in liability in the case any accident occurs.
Third, the employer must adopt an instruction/plan for reaction to emergencies (according to Article 130 of the Code of Civil Protection of Ukraine). The methodological recommendations developed by regional offices of the State Emergency Service of Ukraine may be used. Employees should be familiarized with the plan/instruction and pass relevant training. Additionally, the employer may use other available measures. If some employees refuse the training and familiarization with the documents, the employer may forbid such employees to enter the employer’s premises and establish paid downtime for them.
In case of an accident caused by an air strike, an investigation must be carried out to determine whether any injuries or deaths are related to the employees’ work and whether there was any employer’s fault in the accident (e.g., via violating occupational safety rules).
If the employer’s violation of occupational safety (including if the employer has not taken sufficient measures to prevent danger and its negative impacts) leads to injuries or deaths, criminal liability may be applicable to the CEO or another official (e.g., Occupational Safety Engineer). According to Article 271 of the Criminal Code of Ukraine, penalties include fines, correctional labor, restriction of liberty, or imprisonment with or without deprivation of the right to hold certain positions or engage in certain activities.
Therefore, it is recommended not to neglect the mentioned obligations not only in order to avoid liability but also to protect the employees and their lives in such dangerous times.
By Timur Bondaryev, Managing Partner, and Kseniia Lotosh, Associate, Arzinger
