REMOTE WORK IN THE LABOUR CODE

On 1 December 2022, the lower house of the Polish Parliament adopted a draft law amending the Labour Code and other acts and introducing remote working as a permanent solution into the Polish labour law system.

At the same time, the draft provides for the repeal of the provisions on remote working solutions introduced by employers to counter COVID-19 and repeal of the teleworking provisions. It is still permitted for the teleworking arrangement to be used for a period of six months after the new legislation comes into effect.

It may take a considerable amount of time for employers to implement the new remote working solutions. Therefore, we recommend that efforts to adapt the remote working model to the new law, including work on the employer’s internal regulations in this regard, should be commenced as soon as possible, even before the Parliament finishes the legislative process. Below, we present the main reasons why it is worth addressing this matter now:

1. The draft law provides that the remote working provisions will come into effect as early as two months after promulgation. Given that the law has already been passed by the lower house of the Polish Parliament, it is expected that the new legislation could be in force from the end of February 2023. Starting the implementation of remote working arrangements now will allow all the necessary solutions and regulations to be ready by the time the law comes into effect.
2. According to the draft law, the employer will be obliged to cover the employee’s costs of, inter alia, electricity and telecommunication services necessary for remote working. Determining the amounts that will be paid to the employees on that account, even in the form of a flat-rate allowance, may prove to be time-consuming. In addition, such an expense must be taken into account when planning the budget for the subsequent financial year.
3. The draft law also requires employers to prepare appropriate health and safety documentation: an occupational risk assessment for remote working and information for the employees setting out the principles of safe and healthy performance of work on a remote basis

In order to support you even more effectively in this process and to facilitate the calculation of the amount that should be paid to the employees as reimbursement of the costs of remote working, we have partnered with a specialised auditor. That advisor values the costs of electricity and telecommunication services incurred by the employees in connection with remote working and provides assistance in determining the appropriate amount of the flat-rate allowance for the employees on that account.

Below, we also present the key points of the draft law passed by the lower house of the Polish Parliament.

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 each time agreed with the employer, including at the employee’s home address, in particular with the use of means of distance communication.
• The arrangements concerning remote work 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 new law, the employer will be able to unilaterally instruct an employee to work remotely.
• An option has been introduced for remote work to be provided at an employee’s request on an occasional basis, in which case certain provisions on remote work will not apply. Such occasional remote work will be allowed to be performed for up to 24 days in a calendar year.

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 regulations document
• Remote work may 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:

• provide the employee with the materials and work tools, including technical equipment, necessary for remote working, and provide the employee with technical assistance and training;
• provide the employee with the installation, servicing, and maintenance services with respect to work tools, including technical equipment, necessary for remote working, or cover the related costs;
• cover the costs of electricity and telecommunication services necessary for remote working and any other costs directly relating to remote work, if it is so agreed;
• pay the employee money in lieu if they use work materials and tools necessary for remote working not provided by the employer;
• (the employer may replace the above benefits with a flat-rate allowance);
• health and safety obligations specific to remote working:
  • the employer performs health and safety obligations in relation to the employee during the period of the employee’s remote work, with the exception of, inter alia, setting up the workstation in accordance with health and safety regulations and principles;
  • when assessing the occupational risk, the employer must take into consideration, inter alia, the psycho-social conditions of such work;
  • the employer has the right to carry out a health and safety inspection and if any irregularities are found, either requests the employee to rectify them or withdraws permission for the employee to work remotely.

The draft law also provides for the introduction of provisions on testing the employees for alcohol, testing the employees for the presence of a substance having a similar effect to alcohol in an employee’s body, and on the processing of the employees’ data collected during such tests, under which provisions the employer will be able to test the employees for alcohol. According to the draft, those provisions will come into effect 14 days after promulgation.

Wiewiórski Legal provides comprehensive legal support in all areas relating to the implementation of remote working solutions, including the preparation of the employer’s relevant internal regulations. Do not hesitate to contact us.