Protective shelters and structures for employees and company infrastructure: Ukraine private sector obligations

The full-scale Russian attack on Ukraine, characterised by daily shelling across the country with long-range weaponry, has highlighted the need for a system of effective and wide-spread protective structures unlike the bunker system that any other nation has ever maintained. Even the existing Cold War-era protective structures, to the extent they have been preserved, have proven insufficient.
The Ukrainian government, municipalities, foreign donors, and charities are doing much to build or renovate shelters and simple covers across the country. In this article, we will focus on the obligation of private companies to build or procure protective structures for their employees and assets to guard against war-related risks. 

Types of protective structures

There are four groups of protective structures for people: 

1.    Civil protection structures (shelters): all-encompassing specially designed buildings or premises consisting of two sub-types:

• Shelters: a sealed structure for at least 48 hours of protection against hazards from emergencies, weapons of mass destruction, and conventional means during military operations or terrorist acts.
• Radiation shelters: a non-sealed structure for at least 48 hours of protection against ionising radiation and hazards from radiation accidents, radioactive contamination, and indirect effects of conventional munitions. 

2.    Dual-purpose structures: buildings or parts of buildings used for public or business needs, designed or adapted to provide temporary shelter during emergencies, military operations, or terrorist acts.

3.    Simple covers: basements, cellars, or other underground structures providing temporary shelter (i.e. at least 48 hours) to reduce the indirect effects of conventional munitions during military operations or terrorist acts.

4.    Primary (mobile) covers: technical products, including modular types, designed for short-term (i.e. up to four hours) protection on the ground, reducing the indirect risk from conventional munitions. These shelters are assembled or manufactured according to national standards and technical regulations.

These structures represent a means of collective protection and jointly form a network of civil protective structures.

Minimum requirements for facilities with no civil protection importance

Starting April 2024, Ukrainian law obliges employers who have no civil protection or critical infrastructure status to provide their employees with access to dual-purpose shelters or at least simple covers. This obligation stems from amendments to Articles 20 and 32 of the Civil Protection Code of Ukraine. Before these changes, there was still a requirement for all employers to ensure the safety of all employees during air raids, but those were more general and did not explicitly require access to shelters.

Now, all companies must have a clear understanding of the means of collective protection for employees, which is located around their production facilities. Employers can no longer simply instruct employees to go to a shelter in case of emergency. They must specifically define the shelter, the dual-purpose structure or cover.

A company can fulfil this responsibility by providing its own or by ensuring access to third-party or municipal or governmental protective structures. The chain of protective structures is well-developed in Ukrainian cities, towns, and villages. The two key criteria for a legitimate shelter include its proximity – 300 metres in multi-story building areas and 500 metres in other areas – and its capacity.

To prove compliance, employers that do not have their own shelters, dual-purpose structures, or simple covers should specify the formal nearby facilities where their employees have access. For municipal and governmental shelters, employers may request information from authorities about available protective premises and their capacity. For private protective structures, a company should sign a contract with the structure’s owners on how to use the premises and share the maintenance costs.

If employees work in areas without protective structures within the defined 300 metres to 500 metres proximity and it is impossible to arrange for even the simplest cover in the nearby underground premises, employers should consider relocating employees closer to existing protective structures or, as a last resort, if the relocation is objectively impossible, installing mobile covers. This may be applicable for facilities located outside settlements. 

The law does not provide an option for building a new stand-alone simple cover but only allows adjusting the existing underground premises for such purposes. A company may still consider building a new building or renovating an existing one that includes an underground room (i.e. basement or cellar). This can then be fabricated into a simple cover. The new construction or renovation of the existing building, however, would require zoning consideration and be subject to the standard permitting procedures.

Arranging simple covers

Adjusting premises to arrange the simplest covers (unless working with load-bearing or external walls) does not require any construction permits, approvals, expert evaluations or commissioning. Engaging a certified architect and a licensed construction company for this is also not necessary.
The only technical requirements for the simplest covers are listed in Sections II and V of the Order of the Ministry of Internal Affairs “On Approval of Requirements for the Use and Filing of the Fund of Civil Defence Protective Structures” No.579 dated 09 July 2018.

After completing work to arrange a simple cover, the cover should pass the examination with a commission formed by the cover’s owner, who should invite a state emergency service representative to participate in the commission. Local authorities will then accept the cover to the network of protective structures and record it in the information system of the State Emergency Service of Ukraine.

Installing primary (mobile) covers

Installation of primary covers is an obligation for local authorities. This type of cover is intended to protect people for only four hours and in public places where people gather (e.g. transport stops, parks, recreation areas, etc.). Therefore, we do not advise employers to install and rely on these facilities to ensure the safety of their employees unless the production process cannot be relocated objectively.

Similar to simple covers, installation of primary covers does not require permission, expert evaluation, and commissioning, except for examination by the respective commission and recording in the network of protective structures. These structures must only comply with the Technical Regulations of Civil Protection Means, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 535 of 26 May 2023.

Full-fledged shelters

Depending on an entity’s importance for civil-protection needs or the economy and the type of anticipated hazard, Ukrainian law obliges the following businesses to have a shelter, radiation shelter, or dual-purpose structures:

• Companies located in the areas of possible significant destruction of settlements:
  • entities classified within categories of civil protection;
  • nuclear power plants, other nuclear facilities, and businesses ensuring the operation of these facilities; 
  • healthcare facilities providing services for people who may not be evacuated; and
  • entities classified as critical infrastructure facilities of the first and second categories.
• If located outside the areas of possible significant destruction of settlements: entities classified as the highest relevant category of importance for civil protection;
• If located within the observation zones of nuclear facilities: all companies.

There are formal procedures to assign a company a category of civil protection or a category of criticality for infrastructure. The areas of possible destruction and the observation zones around nuclear facilities are defined in urban planning documentation. The construction laws and building codes also provide comprehensive criteria for developers and architects to design civil protection means when drafting project design documentation. Therefore, a company should be aware if its facilities have a status that requires constructing and maintaining a full-fledged shelter.

The requirements for the design and construction of civil defence structures and dual-purpose structures are specified in the newly adopted Building Code (DBN) B.2.2-5:2023 Civil Protection Structures replacing norms of 1997 that regulated this sphere. The new DBN went into force on 1 November 2023 and contains significantly increased safety requirements for ensuring mechanical resistance and stability (i.e. strength), safety from electrical problems, explosions and fire, and the conditions for unimpeded access for persons with disabilities.

Obligation to protect a company’s own assets

If a company’s assets are considered objects of critical infrastructure (OCI), in addition to the protection of employees, a company must also protect these assets. The criteria and responsible authorities for identifying these assets are defined by the law "On Critical Infrastructure." Examples include power stations, natural gas production facilities, entities producing food or providing telecommunications services.

If a company owns, uses, or manages a facility that meets the respective criteria, responsible authorities will categorise the assets into one of four categories of critical infrastructure. As a result, the facility will be included in the official list of OCIs, and the company will be regarded as an operator of the OCI. This status obliges the company to arrange additional means of physical protection for the OCI. Design and technical requirements are provided in various subordinate sectorial legislation.

For more information on these shelters and opportunities in Ukraine’s construction sector, contact your CMS client partner and these Ukrainian experts: Natalia Kushniruk, Mykhaylo Soroka.