Please note, your browser is out of date.
For a good browsing experience we recommend using the latest version of Chrome, Firefox, Safari, Opera or Internet Explorer.

01 Jun 2020

Covid-19

LABOUR CODE RIGHTS AND OBLIGATIONS of EMPLOYERS and EMPLOYEES CONNECTED WITH THE SPREAD OF SARS-CoV-2 IN POLAND

As in other European countries, Poland is also currently facing a difficult challenge: to prevent, counteract and combat the SARS-CoV-2 virus causing the COVID-19 disease. Cases of COVID-19 infections are increasing day by day.

The extraordinary situation also has a huge impact on the relationship between employers and employees. However, employers have many doubts regarding how to operate and apply the labour provisions in connection with the outbreak of SARS-CoV-2. First of all, they want to protect the health and life of employees by ensuring the right health and safety conditions at work. On the other hand, they do not want to violate the rights of the employee, who, according to applicable law, is under special protection.

This article aims to outline the employer's rights and obligations connected with the growing threat of SARS-CoV-2 infection in Poland, based on the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them(hereinafter referred to the “Act”)and the general rules of labour law.

Remote work

Pursuant to article 3 of the Act, in order to counteract COVID-19, the employer has the right to instruct the employee to perform work specified in the employment agreement outside the employee’s permanent workplace for a fixed period (remote working). Unfortunately, the Act does not specify how long the remote working can last.

Remote work should not affect the amount of remuneration for work. In addition, in such situation, the employer should provide the employee with equipment and reimburse him for the costs incurred.

Previous experience related to remote work makes it possible to evaluate the usefulness of this solution from a long-term perspective. In fact, many companies have used this possibility, despite the organizational difficulties associated with it, among others with the implementation of appropriate tools and technologies to ensure effective project management, communication, access to information and documents and data security.

According to some, the implementation of the remote work model will probably change the labour market in Poland forever.

Care allowance

Furthermore, the Act states that in case of closing a crèche, children's club, kindergarten, school or other facility which children attend, or the inability to obtain a babysitter or day carer because of COVID-19, an insured person, during a period of leave resulting from the necessity to take personal care of a child, shall be entitled to receive a care allowance, but not for more than 14 days.

In connection with the changing situation, in particular the successive opening of crèches, kindergartens and other facilities indicated in these provisions, there are fewer and fewer people entitled to receive a care allowance. The legislator also stipulates that a care allowance will be granted even after facilities have opened, if the need for personal care concerns a child holding a certificate of significant or moderate disability up to the age of 18, or a child with a certificate of disability or a decision on the need for special education, or in case of an adult disabled person.

Protection of health and life of employees, Business trips

Employers have an obligation to protect the health and life of employees and to provide them with safe and hygienic working conditions. Therefore, the employer should take all preventive measures to ensure safety in the workplace.

In accordance with the applicable regulations, the employer is obliged to ensure employees have access to disposable gloves and disinfectants. The employer must also adapt the premises to provide a distance between workplaces of at least 1.5 m, unless this is impossible due to the nature of the activities carried out, and the employer provides personal protective equipment related to combating the COVID-19 epidemic.

At the same time, the employer cannot avoid the risk that the measures taken, e.g. isolation of an employee from other employees, or rules prohibiting employees from eating lunch together, could be considered as a limitation of the employees’ rights and as discrimination. The Labour Code gives employees the right to refrain from the performance of work if the conditions of work do not correspond to the provisions on health and safety at work and pose a direct danger to the health or life of the employees.

It means for example that an employee may refuse to comply with their employer’s instruction to make a business trip to a country or region with persistent virus transmission. On the other hand, during the period when COVID-19 is spreading, employers should reduce employees' business trips to a minimum and, even if they are extremely necessary, the employer should provide the employee with appropriate measures to limit the risk related to infection, e.g. by limiting the employee's stay in the affected area.

Due to the latest regulations, all Polish citizens who are presently abroad (in particular in “infected areas”) can return to Poland, but they are obligated to undergo a compulsory 14-day quarantine period at home. This obligation also concerns people residing in the same household with a person who has returned from abroad. The person undergoing the mandatory quarantine must inform the employer about this fact.

In our opinion, after the quarantine (subject to its normal course), the employer should (unfortunately) allow the employee to return to work.

Telework

In Poland for a number of years the Labour Code directly provides for the concept of “telework” – in other words distant work directly from the employee's home. This is made on the basis of a separate agreement between the employer and the employee. The employer has the right to control the employee in the place in which the work is performed.

Additional rights of the employer related to a drop in turnover due to COVID-19

The Act provides additional rights for employers who have experienced a drop in turnover due to COVID-19 and who have not been in default of tax obligations, social security and health premiums up to the end of the third quarter of 2019.

An employer who meets the aforementioned conditions may:

  • reduce the employee's minimum uninterrupted daily rest from work from 11 hours to not less than 8 hours, and the employee's minimum uninterrupted weekly rest from 35 hours to not less than 32 hours, covering at least 8 hours of uninterrupted daily rest;
  • conclude an agreement on the introduction of a balanced working time system in which it is permissible to extend the daily working time, but not more than up to 12 hours, in a reference period not exceeding 12 months;
  • conclude a bargaining agreement on the use of employment conditions that are less favourable for employees than those resulting from the employment agreements concluded with those employees, to the extent and for the time fixed in the agreement.

The employer must conclude agreements with the trade unions or employee representatives elected in accordance with the procedures adopted at the place of work.

Readiness for work, work stoppage, reduction of employees’ working hours

The Labour Code also recognises the concept of “work stoppage”. In such case, if an employee is ready to perform work but is unable to do so for reasons concerning the employer, the employee is entitled to remuneration for this period calculated on the basis of his personal remuneration arrangements, based on an hourly or monthly rate. If this component of remuneration was not directly established when setting the remuneration conditions, then the employee should receive 60 per cent of the remuneration (however, this generally relates to employees employed on the basis of "piece-work” (praca akordowa)). In any case, remuneration for the period of work stoppage must not be lower than the minimum remuneration for work, as set out under separate statutory provisions.

The Act gives employers who have experienced a drop in turnover as a result of the pandemic a separate opportunity to (i) announce economic downtime in the establishment, (ii) reduce the employees’ working hours and get financing of the remuneration from the government. It should be noted that if an employer submits such an application, he must not terminate employment agreements for reasons not related to the employee, if the employee is covered by economic downtime or reduced working time, during the entire period of receiving benefits (maximum 3 months).

Economic downtime or reduction of employees’ working hours can be introduced based on an agreement concluded with the trade unions or employee representatives selected in accordance with the procedure adopted at the given employer.

***

We would like to point out that the current extraordinary situation may potentially contribute to an abuse of rights of employees as well as the rights of employers (e.g. related to the limited ability of employers to verify employees' duties while remote working). There is also a serious risk related to discrimination.