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

07 April 2021
Our employment experts in Poland answer key questions in relation to working from home and the future world of work.
In response to the pandemic, restrictions have been implemented internationally, often including the requirement to work from home where possible. As the vaccination programme is underway and restrictions are cautiously reviewed, we consider what the future world of work may look like and whether home working is here to stay.  
Do employees have a right to continue working from home after the lockdown restrictions have lifted?

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.

Should employers have a policy dealing with home working and what are the key points?

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.

 
Can an employer require employees to work entirely or predominantly from home? Is employee consent required? What are the main risks?
Currently, the rule is that during the states of epidemic or epidemic emergency, an employer may instruct the employee to work remotely if an employee has conditions to perform this type of work (technical conditions, home conditions, if the type of work allows for remote performance of work). 

The employer may instruct the employee to work remotely for a specified period of time. However, an employer may withdraw the instruction to work remotely at any time.

One of the main risks is the possibility of less effective work performed by an employee. Moreover, frequently the employer does not have sufficient control over the employee's use of working time and health and safety conditions.
Do employees have any entitlement to allowances/benefits if required to work from home?
An employee performing their role at the workplace needs to be treated the same as an employee performing remote work. Otherwise, an employee performing remote work may raise the issue of unequal treatment. Moreover, the remote work is being performed under the instruction of an employer which means that an employee does not have any influence in the decision process.

As it comes to additional benefits connected with remote work, currently they are not specified in any act. However, the tools and materials which are necessary to perform remote work shall be provided by the employer. An employee may use his/her own tools or materials if it ensures protection of confidential information and other legally protected secrets, including business secrets or personal data, as well as information, the disclosure of which could expose the employer to damage.

The proposed draft amendment to the Labour Code specifies that employees who work remotely shall be entitled to an allowance in the amount determined in an agreement with an employee. When determining the amount of the allowance the parties should take into consideration such aspects as: consumption standards of materials and tools, their documented market prices and the amount and quantity of materials used for the business purposes and their market price. However, this issue is still subject to legislative works. 
What are the key trends in relation to home working?
Due to the state of pandemic most companies decided to switch to remote work. Companies recommend performing work from home to protect health of employees. Many employers decide to organise virtual meetings (lectures, video discussions) in order to maintain close relations between the employees. 

Given the fact that more and more people have been vaccinated, some employers are gradually choosing to bring employees back to the workplace (at least partially), keeping remote work as an option. 

Get an insight into the current situation in other jurisdictions from our global legal team.

 

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