The provisions on remote working will enter into force two months after the date of publication of the Act in the Journal of Laws. Employers, on the other hand, will have less time to implement the provisions on sobriety checks, as they will come into force 14 days after the date of publication of the Act in the Journal of Laws.
Remote working
Under the enacted law, the existing provisions of the Labour Code on telework are repealed. Instead, the legislator has provided for the possibility to perform remote work in 3 forms: by agreement between the employer and the employee; by order of the employer; and on an occasional basis.
Remote working by agreement between employer and employee
The agreement between the parties to the employment contract concerning the performance of the remote work may be made at the time of the conclusion of the employment contract or during the period of employment. In the latter case, the agreement may be made at the initiative of the employer or at the request of the employee made on paper or electronically.
In the course of remote work agreed upon during the period of employment, either party to the employment contract may make a binding request, made on paper or electronically, to discontinue the remote work and restore the previous conditions of work.
As a general rule, an employee's request to work remotely will not be binding on the employer. However, in the case of certain categories of employees (e.g.: pregnant employees, employees taking care of a child up to 4 years of age, employees caring for disabled persons living in the same household with them), the employer will have to grant the employee's request, unless this is not possible due to the organisation of work or the type of work performed by the employee.
Remote working on a command basis
Remote work may also be provided at the unilateral instruction of the employer in the following situations:
- during a state of emergency, a state of epidemic emergency or a state of epidemic emergency and for a period of 3 months after their revocation, or
- during the period in which it is temporarily impossible for the employer to provide safe and hygienic working conditions at the employee's existing workplace due to force majeure.
The issuing of such an order is only possible if the employee makes a prior declaration on paper or electronically that he or she has the premises and technical conditions to carry out the remote work.
Occasional remote working
Remote working may be carried out on an occasional basis, at the request of the employee in paper or electronic form, for a maximum of 24 days per calendar year.
In the case of this form of remote working, the employer is not obliged to provide the employee with the materials and work tools necessary to perform the remote work, to cover the costs associated with the remote work, nor is the employer obliged to provide the employee performing the remote work with technical assistance and the necessary training in the use of the work tools.
Principles of remote working
The rules for remote working should be set out in an agreement between the employer and the company trade union organisation or in regulations issued by the employer if no agreement is reached within 30 days of the employer presenting a draft agreement.
If the employer does not have company trade union organisations, the rules for remote working should be set out in regulations issued after prior consultation with employee representatives selected in accordance with the procedure adopted by the employer.
Remote working is also possible if there is no agreement or regulation in place, in which case the rules for remote working should be set out in an agreement with the employee or an order from the employer to carry out remote working.
Each of the above documents should specify:
- group or groups of employees who may be covered by remote working;
- rules for the payment by the employer of the costs related to the installation, servicing, operation and maintenance of work tools, as well as the costs of electricity and telecommunication services necessary to carry out remote work;
- rules for determining the cash equivalent or lump sum;
- the rules for the communication between the employer and the remote worker, including how the remote worker confirms his or her presence at the workplace;
- rules for controlling the performance of the remote worker;
- health and safety inspection rules;
- principles for monitoring compliance with information security and protection requirements, including procedures for the protection of personal data;
- rules for the installation, inventory, maintenance, updating of software and servicing of work tools entrusted to the employee, including technical equipment.
Employers' obligations in relation to the implementation of remote working
Employers who wish to implement remote working in their workplace will also need to:
- provide the employee performing the remote work with the training and technical assistance necessary to perform that work;
- Define procedures for the protection of personal data and provide instruction and training in this area, where necessary;
- draw up an occupational risk assessment for the remote worker and information including the principles of safe and healthy remote working;
- document any remote working accidents.
Monitoring the sobriety of employees
Prior to the entry into force of the law in question, the issue of the possibility to carry out self-monitoring of employee sobriety was quite controversial due to the residual regulation of the matter and the lack of consistency with data protection legislation.
In 2019 Polish Personal Data Protection Office has issued an interpretation that there is no legal basis for employers to self-monitor employees with a breathalyser.
The enacted law allows employers to monitor the sobriety of employees themselves, as well as to check for the presence of alcohol-like substances in their bodies.
Sobriety control - major changes
The Act introduces the possibility of carrying out a preventive sobriety check or a check of employees for the presence in their bodies of agents having similar effects to alcohol ("If this is necessary to ensure the protection of life and health of employees or other persons or the protection of property").
Testing by the employer includes the use of methods that do not require a laboratory test (breathalyser) using a device that has a valid document confirming its calibration or standardization.
If the test reveals the presence of alcohol or there is a reasonable suspicion that the employee has come to work in a drunken or intoxicated state or has consumed alcohol while at work, the employer must not allow such employee to work. This rule applies mutatis mutandis in the case of substances having similar effects to alcohol.
At the request of the employer or an employee who has not been admitted to work, a test of the employee's state of sobriety may also be carried out by an authorised authority appointed to protect public order (e.g.: the Police). This authority may order a blood or urine test in certain situations.
The provisions on sobriety checks also apply to employers organising work carried out by individuals on a basis other than employment (persons employed under civil law contracts) and self-employed individuals.
Employers' obligations to implement sobriety checks
Employers wishing to carry out employee sobriety checks themselves (as well as checks for the presence of alcohol-like substances in their bodies) will have to determine the group or groups of employees to be checked and the manner in which the checks will be carried out, including the type of device to be used for the checks, the time and frequency of the checks.
The aforementioned issues should be set out in a collective labour agreement or in work regulations or in an announcement if the employer is not covered by a collective labour agreement or is not obliged to adopt work regulations.
Employees should be informed of the introduction of the control no later than 2 weeks before the start of the control. In the case of a newly recruited employee (subject to an inspection), the employer should provide the above information to that employee before allowing him/her to work, either on paper or electronically.
DWF will be happy to address any concerns you may have regarding the implementation of the Act as passed.
Our Employment and Pensions team will be happy to support you in resolving practical issues that may arise against the background of the implementation of these extremely important institutions.
