As remote work has grown in popularity during the Covid-19 pandemic, it has become necessary to adjust that form of employment to those Labour Code provisions that concern employee safety.
Employers have a general duty to ensure that employees perform their tasks in safe and healthy conditions. It means that workplaces must meet such requirements as appropriate lighting and sufficient size of a desk or work table. It is much easier, however, for employers to check compliance with Occupational Health and Safety (OHS) regulations in their establishments than it is at employees’ homes.
There are various ways employers can verify such compliance, and a list of such ways and a selection method may be set out in workplace by-laws. Such by-laws may lay down detailed rules for inspections of a remote workplace, including the employer’s right to carry out an inspection at the employee’s apartment. Such checks may be carried out by an employee of the OHS service but the date of such inspection and the inspector’s particulars must be agreed with the employee and the inspection must be limited in scope exclusively to the room in which the employee performs remote work.
In addition to workplace by-laws (or irrespective of the duty to establish such by-laws), some employers introduce separate remote work by-laws that specify OHS-related rules among various organisational issues. This solution is worth following.
If, however, the employer has not introduced any workplace by-laws or remote work by-laws, an OHS inspection may be carried out only with the employee’s prior consent.
In the absence of appropriate inspection powers in workplace by-laws or remote work by-laws and if the employee does not agree to a check in their private workplace, an inspection may be carried out remotely. For example, employees may be asked to fill in an appropriate questionnaire concerning conditions in which they perform remote work, including compliance with OHS requirements.
In accordance with the labour law, in the event of an accident at work the employer must, among other things, take actions to eliminate or limit the hazard, provide first aid to the injured person and notify a district labour inspector (okręgowy inspector pracy) of the accident. If remote work is performed, the procedure should be followed similarly as in the case of an accident at the work establishment, although determining whether an accident at work in fact occurred may pose difficulties.
Under social insurance provisions related to accidents at work and occupational diseases, an accident at work is a sudden event, caused by an external cause, related to the performed work and resulting in an injury or death of an employee.
In line with Supreme Court judgments, it may be concluded there is a link between an accident and performed work, irrespective of the time and place of the accident. Consequently, an accident at work may also take place while employee duties are performed remotely. Importantly, an assessment of whether an event may be considered an accident at work will always depend on the facts of the case. Considering that, on account of the specific nature of remote work, employees enjoy greater freedom to organise their working time, a specific event will not be deemed as an accident at work in every case. Frequent disputes in this matter may be expected. It seems that it will be of key significance whether employees are able to gather evidence confirming that their accident was in fact connected with work.
To conclude, a coronavirus infection at work is not considered as an accident at work, which follows from the above mentioned definition contained in the social insurance provisions and concerning accidents at work and occupational diseases. An accident at work is defined as “damage to the tissues of the human body or organs as a result of an external factor.” It means that the disease caused by the virus may not be considered an injury, notwithstanding the fact that it would be impossible to prove that the infection occurred during or in connection with performed work.