There is an acceleration on the changes to the Labour Code in this area and last week the draft law was adopted by the Councils of Ministers. The draft will be further proceeded in the Polish Parliament. There is a plan that the new law on the remote work, when and if enacted, enters the binding force on 17 August 2022.
The new draft is a combination of two earlier draft amendments to the Labour Code. Remote work is to be finally accepted into the Polish legal system as a permanent solution. The drafters emphasise that numerous demands to enable the parties to the employment relationship to use this form of work also after the cancellation of the state of the epidemic declared due to Covid-19 in the territory of Poland came from both employees and employers’ organizations, which recognised the advantages of this form of work. Although, in our opinion, remote work in its new form may prove to be “overregulated”.
Briefly, the amendment provides for three types of remote work: (i) “proper” remote work performed wholly or partially outside the workplace, with the location of the work to be agreed with the employer; (ii) remote work performed at the employer’s instruction issued only for a limited period of time and for objective, fortuitous reasons beyond the employer’s control; (iii) occasional remote work performed up to a maximum of 24 days per year at the employee’s request.
The amendment is to abolish entirely the employment of employees in the form of telework and replace it with the remote work.
Proper remote work
Remote work, according to the new definition, will be work performed entirely or partially in a place indicated by the employee and agreed with the employer in each case, including at the employee’s home address, in particular using means of direct remote communication.
An agreement between the parties to the employment contract on the performance of remote work by the employee may be made:
- while concluding the employment contract or
- during the term of employment.
If the remote working is agreed upon during the employment, it will take place either on the initiative of the employer or at the request of the employee , submitted in paper or in electronic form.
Should the employee wish to return to the work on-site, either party to the employment contract may submit a binding request to cease remote working and to restore the previous working conditions. The parties will agree on the date from which the restoration of the previous working conditions will take place, which will not be longer than 30 days from the date of receipt of the request. If no agreement is reached, the restoration of the previous working conditions will take place on the day following the expiry of 30 days after receipt of the request.
The employer will be obliged to accept a request for remote working from certain groups of employees (e.g. pregnant employees, parents raising a child up to the age of 4, parents of a disabled child, a child with a special educational needs certificate, carers for a disabled family member or a shared household), unless this would not be possible due to work organisation or the type of work performed by the employee.
Remote work at the unilateral instruction of the employer
Remote work upon a unilateral order/instruction of the employer will be possible to be performed during a state of emergency, a state of epidemic menace or a state of epidemics and for a period of 3 months after revocation thereof or in a period in which, due to force majeure, it will be temporarily impossible for the employer to ensure safe and hygienic conditions at the workplace. However, all this is subject to the condition that the employee submits, directly before the order/instruction is issued, a statement that he/she has the premises and technical conditions to perform remote work.
The employer will be able to withdraw his order/instruction to carry out remote work at any time, but with at least one day’s notice.
Occasional remote work
The draft also provides for the introduction of occasional remote work, performed exclusively at the request of the employee submitted in paper or in electronic form, for a maximum of 24 days per calendar year. In the case of occasional remote work, almost none of the formalities and obligations referred to below and applicable to proper remote work and remote work by order of the employer will apply. In the case of occasional remote work, the employer will also not be obliged to cover the costs of remote work, provide work materials and tools or set out the rules for its performance in an agreement or work regulations.
The control over the performance of occasional remote work, including in the field of health and safety at work and compliance with personal data protection procedures, will take place only on the principles agreed upon with the employee.
Rules of performing “proper”” remote work and at the employer’s unilateral instruction
1. The need to conclude an agreement or introduce a regulation on remote work
The principles of remote work will have to be specified in an agreement concluded between the employer and trade unions. If no agreement is concluded within 30 days from the date of presentation of the draft agreement by the employer, the employer will determine the principles of remote work in the regulations, taking into account the arrangements made with employment establishment trade unions in the course of consultations.
If in the case of a given employer there are no trade unions, the employer will determine the principles for performing remote work in the regulations after consultation with employee representatives selected in accordance with the procedure adopted by the given employer.
The performance of remote work will also be permissible if no agreement has been concluded or no regulations have been issued. In that case, the employer will define the rules for remote working in, respectively, the employer’s order to perform remote work or in a mutual agreement concluded with the employee.
2. Labour costs
The employer will be obliged to:
- provide the employee performing remote work with materials and work tools, including the technical equipment necessary to perform remote work;
- cover the costs related to the installation, service, operation and maintenance of the work tools, electricity costs and the necessary telecommunication services;
- pay expenses other than those specified above which are directly related to the remote working activity, if the reimbursement of such expenses is stipulated in the collective agreement or the remote working rules or in an agreement individually concluded with the employee;
- provide the employee with the training and technical support required to perform remote work.
The parties will be able to agree on the use of the employee’s own equipment, materials and tools. An allowance in the amount agreed upon with the employer will be payable for this. The employer’s obligation to cover the costs or pay the equivalent will be replaced by the payment of a lump sum.
Pursuant to the assumptions of the draft, the provision by the employer of work materials and tools, including the technical equipment necessary to perform remote work, the coverage of costs related to the performance of remote work by the employee, the payment of a cash equivalent or a lump sum, will not constitute income within the meaning of the provisions of the Personal Income Tax Act.
3. Control over the performance of remote work and health and safety issues
The authorisation of the employee to perform remote work is to be made conditional on the employee making a statement that the remote workstation in the place indicated by the employee and agreed with the employer ensures safe and hygienic working conditions.
The employer will be entitled to inspect the performance of remote work by the employee, including health and safety and personal data protection procedures, at the place of remote work and the employee’s working hours on the principles set out in a collective agreement, remote work regulations, a remote work order or in an agreement individually concluded with the employee.
The draft stipulates that the performance of control activities may not violate the privacy of the employee performing remote work or other persons [as we understand them, accompanying the employee to his or her workplace] or impede the use of home premises in a manner consistent with their purpose.
With respect to the employee working remotely, the employer is also obliged to comply with the obligations imposed on it [the employer] in the Labour Code in the field of occupational health and safety, with certain exceptions, and e.g. the initial training in the field of occupational health and safety of persons admitted to work in an administrative and office position could be conducted entirely by means of electronic communication.
The employer will be obliged to carry out an occupational risk assessment for remote workers (in particular the impact of the work on vision, the musculoskeletal system, psychosocial conditions).
Before being allowed to work remotely, the employee will confirm, in electronic or paper form, that he/she has read the occupational risk assessment and OSH rules.
4. Prohibition of discrimination
Employees working remotely must not be discriminated against in any way. Nor may employees who refuse to perform such work be discriminated against.
Pursuant to the provisions of the draft amendment, an employee working remotely may not be treated less favorably with regard to the establishment and termination of the employment relationship, terms and conditions of employment, promotion and access to training for the purpose of improving professional qualifications than other employees employed for the same or similar work, taking into account the differences associated with the conditions for performing remote work.
An employee working remotely must have the possibility, on the principles adopted for all employees, to be on the premises of the workplace, to communicate with other employees and to use the employer’s premises and facilities, as well as the company’s social facilities and social activities.
Let us remember!
When the amendment to the Labour Code concerning remote work comes into force, its introduction may turn out to be more complicated than the current regulations assume, or such regulations may even be missing to a large extent. It will certainly be necessary to verify the practice which has been applied in this respect for at least two years.
It will be necessary to take care of such issues as: taking care of appropriate procedures (agreements, regulations of remote work and personal data protection procedures), agreeing on cost issues or occupational health and safety matters.
