Poland: Preparing for the return to work and the "next normal"

The rules of remote work were issued in relation to and for the period of the pandemic (Act on special solutions related to the prevention, counteracting and eradication of COVID-19, other infectious diseases and crisis situations caused by them, PL: ustawa o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych).

Under the above mentioned law an employee can perform remote work:

• during the period of an epidemic emergency or a state of epidemics, declared due to COVID-19;
• three months after the cancellation of the period of an epidemic emergency or a state of epidemics, declared due to COVID-19.

Under the above mentioned act an employer may instruct an employee to perform work specified in the employment contract, for a specified period, outside the place of its regular performance (remote work). 

After lifting the lockdown restrictions the remote work may continue for the period of three months but only if lifting the restrictions means cancellation of either the period of an epidemic emergency or a state of epidemics, declared due to COVID-19. 

It should be noted, that in a few months we expect new rules regarding remote work which will be introduced in the Labour Code. The draft of the above changes defines different situations in which remote work is possible. Pursuant to this draft remote work can be introduced in the employment contract from the beginning of the employment relationship or during the period of employment. In other words, once the new regulation comes to life, remote work will be possible also after the state of epidemic or epidemic emergency and will depend on the will of the parties.

It is worth mentioning that the Polish Labour Code provides the rules of performance of telework. Telework, as opposed to remote work, involves regular performance of duties by an employee outside the employer's place of business, using means of electronic communication. The provisions regarding telework are much more detailed, e.g. the employer is obliged to: provide the employee with the equipment necessary to perform telework, insurance of the equipment, cover the costs associated with its operation, provide the employee with necessary training regarding the use of equipment and conduct training regarding storing the entrusted data. The agreement regarding performance of telework may be concluded before starting the employment relationship or while being in the employment relationship and may provide additional rules to those mentioned above.

Given the fact that remote work has not been properly regulated in statutory law, the rules regarding telework were frequently applied respectively to the remote work.

The obligation to issue a remote work policy is not stipulated clearly in the statutory provisions, however, it is advisable to introduce a policy and define the rights and obligations of the parties to the employment relationship in the circumstances of remote work. Furthermore, all the policies which were binding while performing stationary work, apply also to remote employees, e.g. in respect of working time, confidentiality obligations etc. 

It is advisable to introduce a remote work policy which stipulates:

• conditions in which remote work can be performed;
• appropriate electronic devices required to perform remote work;
• what are the special obligations connected with this type of work;
• how an employer may communicate and control an employee;
• health and safety at work issues.

Additionally, it may be underlined that the draft amendments to the Labour Code mentioned above, stipulate an obligation to introduce special regulation/policy regarding remote work, covering: the number of employees who perform remote work, the rules of performing remote work (including the manner of checking employee's presence at work), and ways of communication with the employer.