Is this the end of remote work as we know it? An overview of the bill
The reality of working during the pandemic has introduced the concept of remote working into the Polish labour relations for good.
Currently, the basic principles of remote work are regulated in the Act of 2 March 2020 on special solutions related to pre-venting, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them (hereinafter: Special Law). However, it is temporary in nature, so legislative action is pending to introduce this form of work into the Labour Code. This article is based on a bill amending the Labour Code and certain other acts of 16 July 2021. It may, however, differ in its final version from the assumptions presented below.
Before briefly presenting the amending bill, it is worth noting that it mostly duplicates the current provisions of the Labour Code concerning telework. According to the amendment, telework in its present form shall be replaced by remote work. For the sake of argument, it should be noted that teleworking present in the Labour Code is not the same as remote working. The fundamental difference between them is that telework is a permanent form of performing work by an employee outside the workplace, using means of electronic communication, based exclusively on an agreement between the parties. However, according to the provisions of the special law, remote work may also be performer at the request of the employer and occasionally.
Pursuant to the provisions of the La-bour Code amending bill, remote work will involve working wholly or partially in a place indicated by the employee and agreed upon with the employer (including the employee's place of residence), in particular using means of direct remote communication. It means that work can be performed only remotely or in a hybrid form (partially remotely and partially in the workplace) – according to the needs and arrangements between the employee and the employer. Also, the amendments to the Labour Code assume that remote work may be introduced by parties' mutual agreement or by employer's order.
In the former case, the parties' agreement on the remote work may be made when concluding the employment contract or during the employment. It is assumed that such an agreement may be made in writing or electronically. Similarly, as currently in the case of telework, the Labour Code will stipulate the group of staff whose request for remote work will be binding for the employer. They will mainly be employees bringing up a child up to the age of 4, as well as parents of children with disabilities. There is also a proposal to expand the group with employees who care for another member of their immediate family or a person with a disability certificate living in their household. The employer will only be able to refuse the employee's request for remote working if it cannot be reconciled with the labour organisation or the job performed by the employee.
On the other hand, remote working at the employer's instruction (the so-called incidental remote working) may be introduced in the following instances:
- during a state of emergency, a state of epidemic hazard or a state of epidemic;
- during the period of 3 months following the cancellation of the abovementioned states;
- in the period when, due to force majeure, the employer is temporarily unable to ensure safe and hygienic working conditions at the employee's current place of work.
When issuing such an order, the employer will always have to obtain a statement from the employee that they have the premises and technical conditions to perform work in this form. An analogous solution is currently provided for in the special act. The bill, however, goes beyond that regulation by introducing a provision that if the employee informs the employer of a change in the premises and technical conditions, preventing the remote work, the employer will have to cancel the remote work order. Undoubtedly, the proposed change of applications and statements made by both parties to the employment relationship is a great facilitation for the use of remote working. So far, the provisions of the Labour Code provided for them only in writing (i.e. a document with the handwritten signature of the parties). Instead, the amendment provides for a paper or electronic form.
An interesting solution proposed in the amendment is also the so-called occasional remote work. At the employee's request, remote work may be performer for up to 24 days per calendar year. As it is to be only an occasional solution, it will not involve observing any formal conditions. These, however, are numerous for the basic variant of remote work – in this respect, the bill to a large extent duplicates the current solutions concerning telework.
First of all, as it is the case with telework, each employer will have to regulate the principles of remote work either by an agreement concluded between the employer and the company trade union organisation, or by regulations established by the employer – if no agreement with the trade union is concluded, or if there is no trade union organisation. In the latter case, the regulations are subject to consultation with employees' representatives. Also, the employer shall be obliged to provide the employee with materials and tools necessary for the remote work and to pay the related costs, unless the parties regulate those issues differently between themselves. The bill recognises as employee's expenditure not only the costs of electricity and access to telecommunication lines, but also costs related to installation, service, operation and maintenance of work tools necessary for the remote mode. The employer will also be obliged to provide the employee with technical assistance and necessary training in the use of work tools needed to perform work in this form. As is currently the case with telework and remote working, the parties may agree that during the remote working the employee will use their own materials and work tools, including technical equipment, for the payment of an allowance. The allowance may be replaced by the payment of a lump sum, whose amount will correspond to the expected costs to be incurred by the employee for the remote work. The bill directly indicates that such benefits shall not constitute the employee's income within the meaning of the PIT law. The bill copies the current regula-tions of teleworking in terms of the remote employee's right to be on the workplace premises upon principles adopted for all employees. Similarly, it prohibits the discrimination of an employee performing remote work. It also includes the employer's obligation to shape the protection principles of the data provided to the employee working remotely and to carry out, where necessary, instruction and training. The employee will be obliged to confirm knowledge of and compliance with the data protection rules.
As regards OSH training, the amendment provides that induction OSH training may be conducted entirely by electronic means for administrative and office positions. These are not the only specific provisions concerning OSH in the workplace. The draft stipulates that the occupational risk assessment to be prepared by the employer before the employee is permitted to perform remote work must take into account the impact of such work on vision, the muscular and skeletal system and psychosocial conditions of such work. Based on this assessment, information must be drawn up including the principles and methods of appropriate organisation of the remote work place, principles of safe and hygienic performance of remote work, activities to be performed after the completion of remote work and principles of action in emergency situations that pose a risk to human life or health. The employee, in turn, will not only have to confirm that they are familiar with both the assessment and the information prepared on its basis, but also confirm in a statement that the remote work place in the location indicated by the employee and agreed with the employer ensures safe and healthy working conditions.
The Labour Code amending bill also takes into account the specific nature of remote working in the post-accident procedure in the event of an accident at remote work. After reporting the accident, the accident team will inspect the accident site at a time agreed upon with the employee or their household member. The site inspection can be omitted if the accident team finds that the circumstances and causes of the accident do not raise any doubts.
While stipulating that the proposed regulation may be subject to further changes, it should be noted that it allows for greater flexibility than in the case of telework. The popularity of the remote working during the pandemic period proves that it was a solution expected by the parties to the employment relationship, which – especially in the hybrid form – is attractive not only due to sanitary reasons.
Iwona Więckiewicz-Szabłowska, attorney-at-law, doctor of philosophy, Chudzik i Wspólnicy Radcowie Prawni
Agnieszka Kunikowska, attorney, Chudzik i Wspólnicy Radcowie Prawni