REMOTE WORK IN THE LABOUR CODE: the key points of the new draft Act

Wiewiórski Legal | View firm profile

On 19 May 2021, a new draft Act amending the Labour Code Act, the Vocational and Social Rehabilitation and Employment of Persons with Disabilities Act and the Employment Promotion and Labour Market Institutions Act was announced. The main objective of the new draft law is to introduce the provisions on remote work into the Labour Code as a permanent solution.

The new regulations are intended to replace the existing provisions on teleworking.  The process relating to the new draft law is currently in the consultation phase. The ministry intends for the regulations to come into force three months after the end of the state of the pandemic.

Below, we present the key points of the new draft law proposed by the Ministry of Development, Labour and Technology.  The most important question is, naturally, the accurate definition of the notion of remote work.  According to the new draft law, such work is to be performed fully or partly (the so-called hybrid option) at a place indicated by the employee and agreed with the employer.

General key points:

  • The draft law defines remote work as work that can be performed fully or partly at a place indicated by the employee and agreed with the employer, including the employee’s place of residence, in particular with the use of means of distance communication.
  • The remote work arrangements can be made between the parties at the time of entering into the employment contract or during employment.
  • In special cases set out in the Act, the employer will be able to unilaterally instruct an employee to work remotely.

Agreements and rules and regulations documents:

  • If there is a trade union at the employer’s organisation, the principles of remote working are set out in an agreement between the employer and the trade union. In the event that no agreement is reached, the employer defines the principles of remote working in the rules and regulations document.
  • If there are no trade unions at the employer’s organisation, the principles of remote working are set out in the rules and regulations document following consultations with the employees’ representatives.
  • The draft law defines the minimum required provisions that must be included in the agreement and the rules and regulation document.
  • Remote work will be permitted at an employee’s request even if no agreement is concluded or no rules and regulations document is issued.

The main obligations of the employer:

  • The employer will be obliged to supply the employee with the materials and work tools necessary for remote working. It also has to provide the employee with technical assistance and the required training in the operation of work tools.
  • The employer will cover certain costs relating to remote work (more information on this matter is presented below).
  • In other cases, the employer will perform the obligations arising under the existing provisions of chapter 10 of the Labour Code. Naturally, certain exceptions will apply due to the unique nature of remote work, mainly relating to health and safety rules.

The main differences compared to the previous proposals of remote work regulations:

  • The place of remote work is a place “indicated by the employee and agreed with the employer,” which meets the requirement of greater flexibility – but what needs to be considered is how this agreement process should look like in order not to lose that flexibility while at the same time ensuring that the employer can control where remote work is actually performed.
  • In addition to the obligation to cover the costs relating to the installation, service, use and maintenance of work tools necessary for remote working, the costs of electricity and the required access to telecommunications connections, the employer will also be obliged to reimburse other costs directly connected with remote working if the reimbursement of such costs has been specified in the agreement, rules and regulations, instruction or agreement entered into with the employee.
  • The employee will be entitled to an allowance if they use materials and work tools necessary for remote working that are not provided by the employer, which is why the requirement that those tools and materials should be the property of the employee has been removed.
  • The obligation to cover higher costs or pay an allowance may be replaced by an obligation to pay a lump-sum amount which corresponds to the costs that are expected to be incurred by an employee in connection with remote work.
  • It has been left to the social partners or the parties to the employment relationship themselves to determine the rules for carrying out inspections concerning remote work. The new draft law no longer mentions inspections on matters other than the performance of remote work and at the same time abolishes the mandatory health and safety inspections conducted by the employer at the employee’s request. The draft law does not stipulate the requirement to obtain the employee’s consent for the inspection.
  • In line with the employers’ expectations, the new draft law introduces an option of remote work performed occasionally at an employee’s request where certain provisions on remote work do not apply (e.g. regarding formalities at the company and individual level, reimbursement of expenses, the employer’s right to conduct an inspection). What is surprising, however, is the very low limit of days of such work – only 12 days in a calendar year.

General comments on the draft law:

  • The new regulations still fail to answer the question of what is meant by the term “work tools necessary for remote working” – whether it includes only the necessary technical equipment or also such elements of the workstation as e.g. a chair, a desk, a lamp, etc.
  • The draft law also does not meet the expectation of employers and employees that it should be possible, as part of remote work, to use the system of work split up over the day (especially for employees taking care of children).
  • The draft law uses the phrase “paper or electronic form” when talking about the form of legal transactions, which is not consistent with the provisions of the Civil Code on the form of legal transactions and may cause unnecessary doubts.
  • There are no transitional provisions for the employers who have so far used teleworking.
  • The list of prerequisites that have to be met for the employer to be able to instruct its employees to work remotely is limited to two prerequisites only: the state of emergency (states connected with the epidemic) and circumstances connected with health and safety.
  • There is no provision regulating the possibility of demanding that the employee appear at the workplace and the reimbursement of the related costs, if any.

As stated at the beginning, the provisions of the new draft law are currently in the consultation phase. However, it seems that the regulations on remote work in the proposed form are going to be introduced as a permanent solution quite soon. Therefore, we are informing you of the upcoming changes.

Should you have any questions or concerns, do not hesitate to contact us.

More from Wiewiórski Legal