Following the military invasion of Ukraine by the Russian Federation, the Republic of Ukraine declared a general mobilization, making military service compulsory for all able-bodied men aged 18 to 60 with Ukrainian citizenship.
This may directly affect Ukrainian citizens who are employed in the Czech Republic.
Mobilisation and draft orders
A condition for the incurrence of this military service obligation is the proper delivery of the draft order, with the more detailed conditions of its form and the manner of its delivery being determined by Ukrainian law. The fact that the Ukrainian citizen in question lives abroad for a long time or has a second nationality is irrelevant and the obligation to perform military service applies to these persons as well.
A Ukrainian citizen is obliged to comply with a duly served conscription order and to perform military service, otherwise he may be punished by the Ukrainian state authorities for committing a criminal offence, including imprisonment.
As some Ukrainian citizens employed by Czech employers have already been served with summonses, the question arises as to how Czech labour law treats this fact.
Leave from work during conscription
The first question is undoubtedly whether a Czech employer is obliged to provide a leave to the Ukrainian employee who has been duly served with a draft order. If this situation would fall within the scope of the obstacles to work covered by Act No. 262/2006 Coll., the Labour Code (“the Labour Code“), the Czech employer would have to grant him the leave. However, the Labour Code does not expressly regulate the situation and there is no applicable case law.
Although the interruption of work due to the performance of conscription is expressly provided for in the provisions of Section 204 of the Labour Code, this provision applies only to conscription provided for by Czech law in view of its wording and purpose, which is also confirmed by legal doctrine.[1] In other words, this provision regulates only the situation where an employee has incurred an obligation to perform military service in the Czech army on the basis of a draft order under Czech law. The application of this provision to the situation of the Ukrainian employee could only be analogous, and this conclusion is highly uncertain given that it is an obstacle to work for reasons of general interest. We would have to conclude that the service of a foreign citizen in a foreign army is in the general interest of the Czech Republic. Therefore, it appears that the analogous application of Section 204 of the Labour Code to foreign draft orders does not correspond to its teleological interpretation and consequently cannot be applied.
Therefore, the provisions of Section 199 of the Labour Code, which regulates other important personal obstacles to work on the part of the employee, are more likely to apply. In this respect, the legislation is somewhat fragmentary, as this provision does not provide a list of these obstacles and only refers to the implementing governmental Regulation No 590/2006 Coll., which defines a list of 11 other important personal obstacles at work, specifying the leave and possible wage compensation, but the doctrine and case law suggest that there are other important personal obstacles at work not regulated in this Regulation, for which the employer is obliged to excuse the employee’s absence.[2]
As a result, the situation in question is not regulated by this Regulation, but at the same time it may fall within the material scope of this provision according to the above-mentioned doctrinal and jurisprudential conclusion. However, both the doctrine and the case-law are silent as to whether a foreign conscription order is one of those relevant obstacles not mentioned in the Regulation.
Nevertheless, the Ministry of Labour and Social Affairs has issued an opinion in this regard stating that a foreign draft order falls within these obstacles.[3] This conclusion seems to us to be justified with regard to the fact that the Ukrainian employee would potentially face criminal sanctions if he did not obey the summons order.
In view of the above, we therefore recommend Czech employers to grant leave to Ukrainian employees if the Ukrainian employee requests it. The mere delivery of the draft order to the employee does not change the employment relationship, only his subsequent request for a leave of absence pursuant to Section 206 of the Labour Code is necessary, which the Czech employer is obliged to comply with. If, however, the Ukrainian employee does not apply for leave at his own risk, nothing changes in his employment situation and the employment relationship continues unchanged without the provision of leave.
Wage compensation, insurance, and paid leave
The Czech employer will not be obliged to provide the Ukrainian employee with wage compensation for the period of this leave, as this obligation is not stipulated by Czech law. The provision of financial remuneration to Ukrainian employees serving in the Ukrainian army is governed by Ukrainian law. If such remuneration is granted by Ukrainian law in this situation, its payment will be ensured by the Ukrainian state authorities without the involvement of the Czech employer.
In view of the fact that the Ukrainian employee will not be compensated for wages during the period in question and therefore will not have any income from employment, it will not be necessary to pay advances on personal income tax on behalf of such employee, nor will it be necessary to pay social security contributions (“social insurance”) due to the employee’s zero income.
Since the Ukrainian employee is a participant in the Czech public health insurance pursuant to Section 2 (1) letter b) point 1 of Act No. 48/1997 Coll., on Public Health Insurance, there is a general obligation to pay public health insurance premiums on his behalf. However, this does not apply during the period during which the employee has been granted leave of absence from work for the purpose of performing military service in a foreign army. The provisions of Section 3(9) letter b) of Act No 592/1992 Coll. on public health insurance premiums apply, which will result in premiums being payable only on the income actually earned and not on the minimum assessment base. Therefore, if an employee has zero income from employment, no public health insurance premiums will be payable. This conclusion is confirmed by the current position of the Ministry of Health.[4]
If the employee is on leave (“holidays”) and is called up for military service during this period, the period of call-up shall not be counted as leave time under the provisions of Section 219 of the Labour Code, unless the employee requests that the leave (in which case paid leave) run for the duration of the deployment in the armed forces. Given the purpose of this provision, we are of the opinion that this provision applies by analogy to military service in a foreign army, as the situation of such an employee will be similar to that of an employee serving in the Czech army.
Duration and potential termination of the employment relationship
Since service in the Ukrainian army would be an excused absence of the employee, there is no termination ground that would allow the employer to terminate the employment relationship. Therefore, the employer must grant leave of absence at the employee’s request and cannot terminate the employment relationship.
Beyond this, the question is whether, during the period of service in foreign military forces, the Ukrainian employee is not also subject to a period of protection by analogy to the provisions of Section 53(1) letter b) of the Labour Code, i.e. whether it is not possible to give notice to such an employee even if there is another reason for notice.
Again, this is an issue which is not regulated by the Labour Code and on which the decision-making practice has not yet expressed an opinion for obvious reasons. Here, however, we would be inclined to apply this provision analogously to Ukrainian employees, given the purpose of this provision, which is to provide protection to the employee during a difficult life situation. However, this is not a certain conclusion, and we therefore recommend proceeding very cautiously in such a situation.
However, the employment relationship may be terminated at the initiative of the employee. The employee can always give notice of termination of employment without giving any reason in accordance with Section 50 (3) of the Labour Code. The second option is to initiate the conclusion of an agreement on termination of employment with the employer in accordance with Section 49 of the Labour Code. The employee can thus ensure that he will not be forced to return to the Czech Republic after the end of the military deployment.
Recommendation
In connection with this issue, there are a number of issues that are not clearly regulated by Czech law and therefore we recommend concluding an agreement between the employee and the employer that will regulate the regime of leave for the employee and resolve the issue of the procedure in case of a potential future return of the Ukrainian citizen to his employment in the Czech Republic.
Conclusion
Czech law does not expressly address the consequences of serving a draft order on a Ukrainian employee and there is no case law on this issue. However, in view of the interpretation of the Labour Code, it appears that the Czech employer should grant the Ukrainian employee unpaid leave and, on the contrary, should not be entitled to terminate the employment relationship for this reason. During his long-term deployment in the Ukrainian army, the health and social insurance premiums shall not be paid, as the employee will have zero income from employment.
It is possible that, based on the current situation, the Czech government will in the future proceed to prepare new legislation that would explicitly address these issues.
If you have any questions on this topic, please do not hesitate to contact us.
Mgr. Tomáš Jančar, junior lawyer – jancar@plegal.cz
Jakub Veselý, legal assistant – vesely@plegal.cz
08. 03. 2022
[1] VRAJÍK, Michal. § 204 [Conscription-related leave of absence]. In: VALENTOVÁ, Klára, PROCHÁZKA, Jan, JANŠOVÁ, Marie, ODROBINOVÁ, Veronika, BRŮHA, Dominik and coll. Labour Code. 1. edition (1. actualisation). Prague: C. H. Beck, 2020.
[2] VRAJÍK, Michal. § 199 [Working leave, compensation – government regulation], In: op. cit. sub 1, and judgment of the Supreme Court of 10.10.2008, File No. 21 Cdo 4411/2007.
[3] Information for employers and foreigners in relation to the conflict in Ukraine. Ministry of Labour and Social Affairs of the Czech Republic [online]. Prague, 25. 2. 2022 [cit. 2022-03-02]. Available at: https://www.mpsv.cz/documents/20142/2786931/informace_zamestnavatele_CZ.pdf
[4] Opinion of the Ministry of Health on the issue of health insurance and its payment for employees from Ukraine who have received a draft order. Ministry of Health of the Czech Republic [online]. Prague, 28. 2. 2022 [cit. 2022-03-02]. Available at: https://www.mzcr.cz/stanovisko-ministerstva-zdravotnictvi-k-otazce-zdravotniho-pojisteni-a-jeho-placeni-u-zamestnancu-z-ukrajiny-kteri-obdrzeli-povolavaci-rozkaz/