Employment Practice - Alert

The long-awaited draft amendment to the Labour Code was published, aimed at regulating both the rules of remote work as a permanent solution and the possibility of employers to carry out sobriety tests for employees and tests for the presence of substances acting similar to alcohol in their bodies. After being adopted by the Council of Ministers, it will be sent to further legislative works in the Sejm. We summarize the assumptions and indicate our reservations towards the proposed solutions and issues that are worth paying attention to.

Have a good read.

Important issues:

• We do not expect significant changes to be made to the draft act.
• It is problematic that these new solutions will not be made available soon – the provisions on remote work would enter into force only after three months from the date that the state of epidemic in the entire territory of the Republic of Poland is repealed, which is difficult to ascertain at this point in time.
• Since the anticipated regulations contain only general guidelines, employers will have to adopt internal rules for the calculation of costs to be covered related to, inter alia, installation, service, operation and maintenance of work tools, including technical devices necessary to perform remote work, electricity consumption and the use of necessary telecommunications services. Equivalents or lump sums should take into account, in particular, the consumption standards of materials and work tools, including technical devices, their documented market prices and the amount of material used for the needs of the employer and its market prices, as well as electricity consumption standards and costs of telecommunications services. This may also mean that there will be a need to regionalize the adopted rules.
• It will also be needed to define the procedures for the protection of personal data taken for the purpose of remote work and conduct instruction and training in this regard if necessary.
• Some of the employer's health and safety obligations while working remotely are anticipated to be excluded. Initial WHS training of people recruited to work for administrative and office positions are to be conducted entirely via electronic means of communication. This will make it necessary to introduce new procedures and documents in the field of health and safety.
• It will be necessary to elect employee representatives for the purposes of consulting the rules of remote work (if trade unions do not operate) or to regulate the rules of remote work individually in the arrangement with the employee.
• The employer is to assess the occupational risk of an employee performing remote work (it will be possible to adopt universal rules for all job groups) and prepare information for the employee regarding, inter alia, the organization of remote work and its rules. The employee is to be responsible for the proper ergonomic organization of work. Before being allowed to work, they should submit a statement regarding their compliance with health and safety requirements of the workplace. The employer should assure appropriate documentation in this regard.
• The employee's applications for which the provisions of the code or other laws or executive acts specifying rights and obligations in the field of labour law require the written form, are to be allowed to be submitted in paper or electronic form. However, this will not imply a general exclusion of the written form requirements for the remote employee, for example, to the form of concluding an employment agreement.
• Home office is to be officially regulated – it is to be used at the employee's request, submitted in paper or electronic form, for a period not exceeding 24 days in a calendar year. It seems that it will be desirable for the employer to also define the rules of performing work in home office mode (although this is beyond the statutory requirements).
• Telework under the existing rules is to be allowed to be used for no longer than six months from the date of entry into force of the provisions on remote work.
• The provisions introducing the performance of remote work in the mode of counteracting COVID-19 are to be repealed.
• On the other hand, the projected provisions on employee sobriety testing are to enter into force quickly – within 14 days from the date of the announcement of the act. They provide that in case it is necessary to ensure the protection of life and health of employees or other people or the protection of property, the employer will be able to introduce sobriety testing of employees and control of employees for the presence of substances acting similar to alcohol in their bodies.
• In order to take advantage of this option, it will be necessary to determine the groups of employees who may be subject to it, the method of carrying out the test in a collective bargaining agreement, work regulations or in an announcement (in the absence of an obligation to establish work regulations), as well as to conduct it on the basis of separate guidelines contained in an ordinance. In practice, in certain cases, it may turn out that the consent of the trade union organization is a condition for introducing relevant provisions into the work regulations, which may be problematic. It will also be necessary to additionally inform employees about the introduction of sobriety testing.
• The employer are to be obligated to provide and calibrate the sobriety test equipment to avoid the risk of challenging the sobriety test results and the allegation of violation of the rules.
• Despite the fact that the entry into force of the newly projected regulations is postponed into the indefinite future, our experience shows that both sobriety testing of employees as well as regular remote work requires the employer to organise a number of practical issues and take strategic decisions. As such, it is reasonable to prepare in advance for the entry into force of the new regulations and to draft internal regulations and policies, which can be used when the new rules on remote work become applicable, in particular for the purpose of the smooth conduct of the consultation process with employee representatives (rules for the election of employee representatives for this purpose should be formally established).