The global COVID-19 epidemic has resulted in a geometric increase in the practical importance of remote working. In Poland, where only a year ago many employers were quite cautious about allowing remote work, overnight it has become a mean of ensuring business continuity and often the perspective for a long-term reduction in business costs. However, working remotely brings a number of legal and organisational challenges to be addressed or kept in mind. Below we briefly describe the current Polish perspective on this issue.

Current legal environment

To date, Polish labour law lacks comprehensive regulation of the remote work. For many years, the provisions of Polish labour law allowed only remote working in the form of telework (understood as a regular and permanent work outside the company premises with the use of means of electronic communication; it is debatable, however, whether telework can be applied in circumstances in which employees combine remote work with work at the company's premises). Such regulation limited the range of tasks that could be performed remotely. The law was silent on work performed remotely offline, with no use of electronic means of communication or incidental cases of a home office. Where in practice, the latter was the most commonly used. Therefore, until COVID-19 pandemic, remote work has been more of a factual than a legal phenomenon, addressing employees' need for greater flexibility at work.

Remote working on a wider scale was introduced to statutory regulations in Poland only in 2020 by temporary anti-crisis COVID-19 legislation. On this basis, remote work could be performed at the employer's order but only: (i) to counteract COVID-19; and (ii) for a definite period, presently limited to the duration of an epidemic and further three months after the state of epidemic (or epidemic threat) is cancelled.

The temporary COVID legislation does not address introduction of remote work at the employee's request. Therefore, to date, there is still no binding regulation in Poland in this respect.

The above, however, is only a temporary solution that will be repealed after the COVID-19 epidemic is declared ended in Poland.

In response to a clear market need, the Polish legislator has initiated works on regulating remote work in more comprehensive and permanent manner. Several days ago a new draft law in this respect has been finally published. In accordance with it, the current regulations allowing employees to work remotely will be replaced with a new law three months after the end of the COVID-19 epidemic is declared in Poland. What to expect then?

Cancellation of telework

The draft law states that companies and employees will be entitled to agree on performing work wholly or partly outside of the company's premises. Using the electronic means of communication will no longer be necessary. Therefore, more tasks will qualify to be performed in a remote manner.

This also means that the legal provisions currently regulating telework will be repealed. In accordance with the draft law, companies that use this form of employment will have six months to adjust their internal regulations and employment contracts concluded with teleworkers to the new legal environment.

Telework has been performed upon the agreement between the company and the employee and could be introduced at the beginning of employment – in the employment contract but also later on. Employees have also been equipped with the right to request for being employed as teleworkers. In the case of a request by employees in a difficult family situation (e.g. caring for disabled children), the employer is obliged to grant consent, if possible. The same mechanism will most likely be kept with respect to remote work. On the one hand, it promotes the employment of people whose non-work duties may require greater employment flexibility. On the other hand, however, the final decision is left to the employer.

Emergency remote work introduced as a permanent mechanism

Additionally, to address any extraordinary circumstances that may occur in the future, the legislator decided to incorporate the currently binding temporary remote work arrangements to the permanent legislation. As a result, employers will be entitled to unilaterally instruct employees to work remotely in the event of state of emergency or epidemics declared in the future.

Employers will also be able to use a similar solution every time it is necessary in order to provide workers with safe working conditions. This may apply in particular in the event of a fire at the workplace or similar situations, if a given role can be performed remotely. However, the instruction will only be enforceable, if the employee has sufficient technical and housing conditions to perform work this way. Otherwise, the company will either have to arrange an alternative working space for the employee or apply downtime arrangements with respect to him/her. This mechanism is similar to the one provided for in the temporary COVID-19 arrangements.

The draft law does not allow the employer to instruct the employees to perform work remotely when emergencies do not occur. In such a case, obtaining employees' consent will be required.

Ad hoc home office

Additionally, employees will be entitled to request for an ad hoc home office. However, in such a case the total number of home office days will be limited to 12 in a calendar year. The companies will be obliged to grant consent thereto, if possible. No agreement of the parties or earlier scheduling the home office days has been provided for in the draft law. This may raise concerns that in practice, employers may not have effective mechanisms to oppose employees' decisions to work remotely on a given day.

Discontinuation of remote working

During the first three months of remote working, either party may make a binding request to discontinue such a set-up. However, such a request will not be effective immediately. The parties will have to agree on a time limit for the return to stationary work (but no longer than 30 days).

After the first three months, such an employee's request would be no longer binding for the company but should be granted, if possible. On the other hand, if the employer initiates the change after the first three months elapse, it will have to seek the employee's consent by means of an addendum to the employment contract or observing a specific alteration procedure provided for in Polish labour law.

Similar mechanism has been introduced with respect to telework. The continuation of this solution should be approved. It provides the parties with an opportunity to "test" the operation of remote working and to withdraw from it if it does not work. On the other hand, ensures greater sustainability in case of the long-term remote work arrangements.

Place of remote work subject to the employer's explicit consent

In accordance with the draft law, employee will not be entitled to freely decide on the place the remote work is to be performed. Obtaining the company's consent in this respect will be necessary. The temporary COVID-19 arrangements currently in force are silent on this. Given, however, the practical implications the place of work may have on the company's obligations and liabilities (on the grounds of taxes and social security contributions, immigration and health and safety), it is definitely a step in the right direction.

Materials and tools

As a rule, in accordance with the draft provisions, the company will be obliged to provide the remote employee with all tools and materials necessary to perform work and cover costs arising from the use and maintenance of such tools and materials (costs of electricity, access to internet and other costs directly related to performing work in a remote manner). If the employees use their own equipment (which is also allowed), the company will be required to pay the employees an additional allowance. To simplify the monthly settlements, the cost reimbursement and the cash allowance may be replaced by a fixed lump sum payment agreed upon by the parties.

One must remember, however, that the draft legislation does not stipulate how the amount of the allowance or the lump sum should be determined. The establishment of these principles has been delegated to employers. The same applies to determining other costs covered by the employer. The internal regulations introduced at the company in this respect should cover this in details.

Monitoring of performance of work

A major concern for employers in relation to remote working is the issue of the effectiveness thereof and the ability to control remote employees. At the initial stage of remote working, i.e. at the beginning of the pandemic, employers may even have noticed an increase in work efficiency. In the long run, however, the lack of direct daily supervision and the employee's impression of being invisible can cause a loss of motivation, especially as remote work is often accompanied by many distractors. Additionally, the fact that remote mode does not relieve employees of their basic duty to carry out their work conscientiously and diligently, is unlikely to serve as any special cure for the situation.

One way to reduce this "invisibility" may be to introduce more extensive monitoring of emails or time spent in front of a computer and websites visited by the employees. One should remember, however, that every form of monitoring constitutes an interference in the privacy of employees. Therefore, its implementation should be preceded by an analysis of the adequacy of the used solution. It is also important to comply with the formal requirements outlined in the Polish Labour Code in this regard, requiring the introduction of appropriate provisions in the company's work by-laws and informing the employees about the monitoring. The draft regulations do not provide for any exceptions or special regulations for remote employees. However, the employer's entitlement to monitor the performance of work has been explicitly provided for. Similarly to the reimbursement of costs, details thereof should result from the internal regulations in this respect.

Compliance with health and safety requirements

The draft law limits the company' s obligations related to the occupational health and safety. This is because the fulfilment of the employer's obligations in this field may encounter difficulties, especially in a situation where the employee performs work from home. Therefore, similarly to the cases of telework, the draft law transfers some of the obligations related to organising a work post to the employees. On the other hand, however, the new law puts an emphasis on the company's educational obligations towards the employees in the H&S field. This aims to give the employees grounds to independently evaluate the working conditions from this perspective.

However, remote working does not affect the procedures for establishing the circumstances and causes of accidents at work. In order to avoid any doubts whether the accident committee is entitled to conduct investigation at the remote employee's home, it has been explicitly indicated in the draft law that notification about the accident at work is understood as an implied consent in this respect.

Protection of sensitive company information

It is important to remember that remote working is associated with increased risk of confidential information leakage, especially when employees use inadequately secured WIFI networks while performing their duties or in places where unauthorised persons will have access to their computers or phones. Therefore, it is worth introducing appropriate technical solutions to reduce this risk.

It should also be borne in mind that current Polish legislation does not provide answers as to what specific obligations an employee should observe in order to prevent data leaks. Therefore, any detailed security procedures should be designed by the employer. The draft law does not provide for any binding solutions in this respect. Regulation in this area is left entirely to the discretion of the employer. The regulation of security issues is not even indicated as one of the mandatory elements of internal regulations on remote working. However, it is worth regulating this issue in detail in order to be able to draw disciplinary consequences in the future in relation to employees who allow the leakage of confidential information of the company.

Remote work internal regulation

As mentioned above, the draft law does not provide for detailed rules on remote working, leaving many areas to be regulated in internal labour provisions. The specifics of a particular business may affect the range of solutions applied (e.g. as regards protection of sensitive data or monitoring of performance of work). These should be regulated either in an agreement concluded by the employer with the trade union organisations (if such operate at the given company), in remote work by-laws published by the employer, individual agreement concluded with the employee or in the order issued by the employer – depending on the case.

The regulations for remote work should first of all set out the general framework for the performance of work in a remote manner, in particular groups of employees which qualify to remote work or the permissible frequency of use of this solution. The regulations should also regulate all the technical issues related to remote work such as:

  • principles for the reimbursement of costs and/or determining the cash allowance or a lump sum payment;
  • monitoring of performance of remote work; or
  • monitoring the employee's work post for occupational health and safety purposes.

Clear establishment of the above issues should, on the one hand, properly manage the expectations of employees (e.g. whether they qualify for remote work) and, on the other hand, limit the employer's exposure to the risk of, for example, possible claims in the future.

The list of issues that should be regulated internally indicated in the draft law is open. This means that employers may supplement it with other issues relevant from the perspective of a given organisation (e.g. protection of sensitive data and confidential information indicated above). This will be important from the point of view of holding employees accountable in the event of possible violations. It should be borne in mind, however, that internally introduced solutions must not worsen the situation of employees in relation to statutory standards.

***

The assumptions presented above are based on the recently published draft amendments to the Polish Labour Code. This draft is only at the beginning of its legislative path. Therefore, it cannot be ruled out that they may change during the legislation process. It does, however, show the possible direction of changes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.