The universal obligation to wear masks in the workplace

By the Regulation of the Council of Ministers of November 26, 2020 on the establishment of certain restrictions, orders and bans in connection with the outbreak of the epidemic, from November 28, 2020, a general obligation has been introduced to cover the nose and mouth at the workplace in those premises where more than one person is present, regardless of the distance between work stations or provided disposable gloves or hand disinfectants.

Then, on December 1, 2020, a new Regulation of the Council of Ministers of December 1, 2020 on the establishment of certain restrictions, orders and bans in connection with the outbreak of the epidemic, which entered into force today, appeared in the Journal of Laws.

In essence, it repeats the rules resulting from the previous (repealed) Regulation of the Council of Ministers of November 26, 2020 on the establishment of certain restrictions, orders and bans in connection with the outbreak of the epidemic, with the following changes to the order to cover the mouth and nose in the workplace:

1. According to §25 section 1 point 2) of the aforementioned Regulation, an obligation is imposed until 27 December 2020 to cover the face with a mask, visor or a protective helmet with clothing or parts thereof, in generally accessible places, including:

• on roads and squares, in cemeteries, promenades, boulevards, parking places for vehicles, forest parking lots,
• on shared properties and b on properties with other forms of ownership,
• in workplaces, if there is more than 1 person in a room, while the employer may adopt different rules for a given workplace
• in public buildings intended for the needs of: public administration, justice, culture, religious worship, education, higher education, science, health, social care, service banking, trade, catering, services, including postal or telecommunications services, tourism, sports, passenger service in railways, road, air, sea or inland waterway transport; an office or social building is also considered a public utility building,
• in commercial or service facilities, commercial or service establishments and markets (stalls).

2. Exemptions from the above obligation apply, inter alia, to people who cannot cover their mouth or nose due to pervasive developmental disorders, mental disorders, moderate, severe or profound intellectual disability, difficulties in covering or uncovering their mouth or nose on their own (with appropriate certification).

3. The previously applicable exception has been reinstated, which means that in public utility buildings, the mouth and nose cover order does not apply to a person who performs professional, business or gainful activities, with the exception of a person performing direct service to clients or customers during its performance. However, the manager of such a building may decide that everyone should cover their mouth and nose.

4. There is an exemption from the obligation to cover the mouth and nose in workplaces / public buildings for consumption of food / drinks.

5. There is also a statutory legal basis for introducing the order to cover the mouth and nose - Art. 46b point 13 of the Act on preventing and combating infections and infectious diseases in humans.

The above means, in particular, that employers may redefine the current rules of wearing masks in the workplace and ease them in those areas where they are impractical or particularly burdensome for employees. 

If the obligation to cover the nose and mouth is maintained in the company, the employers should inform employees about the above-mentioned obligation to cover the nose and mouth on the premises of the workplace in rooms with more than one person present, and ensure that it is observed. Depending on the given situation, it may be required to indicate that this obligation also exists, for example, in particular in shared real estate or vehicle parking places.

The regulations do not explicitly require the employer to provide employees with masks.

In our opinion, the above-mentioned order is significantly conducive to preventing contamination of employees at the workplace and it is recommended to maintain application of the obligation towards the employees, except in exceptional circumstances. Introducing possible exemptions should be consulted with OSH specialists, in particular in order to assess the risks and key aspects. It is also necessary to ensure other safety measures in the company (disinfection, distances). It is advisable to adopt structured guidelines regarding, for example, the number of people who can stay together in one room, especially when eating. Exceptions to the rule of wearing masks should be precisely defined and, at the same time, other preventive measures should be provided. It is important, however, that they are equal for all employees and that they are consistent. It should also be noted that the regulations above should be introduced by the employer (appropriately authorized persons to act for him) and communicated to employees in a manner adopted in the workplace. Decisions in this respect should not be made by the superiors themselves.

Extended additional care benefit

The Regulation of the Council of Ministers of November 26, 2020 on specifying a longer period of receiving additional care allowance in order to counteract COVID-19 was also published. It provides that additional care allowance due for the duration of care as a result of the closure of the educational institutions, in connection with children in grades 1-3 being sent to study remotely, is extended to include the period from November 30 to December 24, 2020.

Work during quarantine

On November 28, 2020, an update to the Covid act established on October 28 of this year, was published in the Journal of Laws. i.e. the Act of October 28, 2020 on the amendment of certain acts in connection with counteracting crisis situations related to the occurrence of COVID-19, stipulating in Art. 20 point 2) the possibility of providing remote work by an employee during the quarantine period which is perceived as a sick leave period (effective from September 5).

Work during home isolation 

The legislative work which would enable the performance of work during home isolation has been completed. This solution was provided for in the Act of 27 November 2020 amending the Act on special solutions related to the prevention, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them, and certain other acts. Pursuant to Article 1 of the above-mentioned Act (Article 4ha-4hb was added to the "covid" act), employees and other employed persons subject to compulsory isolation at home, during an announced epidemic threat or state of an epidemic, have the option of providing remote work specified in the contract, with the employer’s consent, for remuneration. The act was published in the Journal of Laws. The regulations will enter into force on December 5, 2020.

Work in the circumstances above, as well as work in quarantine, is to be performed in accordance with the provisions regulating remote work in the mode of counteracting COVID-19. 

It is important that when working in home isolation, employees are entitled to the regular remuneration for work and not to remuneration for sickness or sickness cash benefits. They are, however, due for the period of not providing work during the isolation at home.

The justification of the act shows (although it has not been reflected in the regulations) that the introduced solution is to apply to those employees who do not show symptoms of the COVID-19 disease, or where the symptoms of the disease are mild. If the employee's health condition deteriorates during the period of remote work during home isolation, the employee will be entitled to remuneration for sickness or a sickness cash benefit.

It should be noted that the issue of assessing the health of an employee in isolation who would be entrusted with remote work may be problematic and potentially risky for the employer. It is advisable to receive declarations in this regard and provide instructions on the obligation to immediately inform about a change / deterioration in health. The employer is not obliged to accept the work during isolation, while such situations may be assessed, in particular, from the perspective of non-discrimination. It is worth providing appropriate documentation for each case. It also seems risky to terminate an employment contract with an employee working remotely during home isolation.