To keep companies in business, provisions have been introduced into the Polish legal system that enable employers to instruct employees to work remotely, a right previously absent from the Labour Code.
This right is one of the most essential changes introduced by the March 2, 2020 Act—the first regulation addressing the pandemic. An instruction to work remotely could be given during 180 days after the law came into force and that period ended on September 4, 2020.
Since the pandemic continues, the above period has been extended and now remote work may be performed on an employer’s instruction during the state of an epidemic threat or the state of epidemic and for three months after it is lifted.
At the same time, work is underway on the introduction of remote work into the Labour Code and the specification of the detailed conditions of its performance. No detailed provisions of the amendment are known yet, but recommendations put forward by employer organisations contain elements that should be taken into account while working on the new provisions.
The first issue is the development of a legal definition of remote work. Employer organisations argue that it would be the most advantageous to adopt a broad meaning of that term, for example: work performed totally or partially at the place of an employee’s residence or in any other place agreed by the employee and the employer, with the employee maintaining regular contact with the employer. Remote work would be a broader term than telework (which is regulated in the Labour Code), because it covers, among other things, such systems in which work deliverables are sent via means of electronic communications, as well as work performed outside a work establishment without using electronic systems.
Another aspect is the procedure of implementing remote work in work establishments. It should be regulated in remote work by-laws formulated by the employer after consulting trade unions or employee representatives. It is proposed that in the case of employers with fewer than fifty employees, remote work should be implemented by individual agreements.
In addition, the new regulations of the Labour Code are expected to contain provisions on occupational health and safety, adjusted to the specifics of remote work. It is argued that accidents at work while working remotely should be examined independently by the Social Security Authority (ZUS); if an accident at work procedure were initiated, it is the employee that would bear the burden of proving that the accident with his or her participation was related to performing remote work and is in fact an accident at work.
Employer organisations recommend that some solutions should be left to the discretion of employers, such as the issue of costs incurred by employees in connection with remote work that should be clearly specified in remote work by-laws. Such by-laws should take into account the specifics of particular employee groups, duration of remote work and the equipment and materials provided by employers to enable employees to work remotely.
If the new provisions are introduced into the Labour Code, employees will be able to work remotely irrespective of whether the state of an epidemic threat or of epidemic is continuing. Given the signals coming from the government it may be expected that detailed assumptions of the new provisions will become known in the next few weeks.