Workplace dynamic has always spearheaded legislative change. Change is the only certainty in employment law. Since the global pandemic broke out, we have been witnessing tremendous economic and social changes, which may now make their way to the Polish Labour Code.
Remote Work Types
Unlike currently (under special anti-COVID-19 law), the employer will, in general, be unable to instruct the employees to work remotely. This will be possible only exceptionally:
- During a state of emergency, state of epidemic threat or state of epidemic, and for a period of three months after its cancellation
- When it is temporarily impossible for the employer to ensure safe and hygienic working conditions at the current workplace due to force majeure
All other cases, namely full-time remote work and hybrid work, as well as occasional remote work, will require (depending on a situation) the employee’s request, the employer’s approval, the parties’ agreement, the employer’s initiative and/or the employee’s consent.
Trade Unions and/or Employee Representatives
Neither trade unions nor other employee representatives will have the power to effectively force the employer to introduce remote work. However, the employer may need to collaborate with them to launch full-time remote work and hybrid work shemes.
Special Employee Categories
For certain categories of employees, employers will, in general, be obliged to agree to remote work, unless it is impossible because of the type and/or organisation of work. Reason(s) justifying a refusal will have to be provided to an employee within seven working days. It will be subject to a court’s verification. Special categories will include employees who are:
- In difficult parental situations (e.g. parents of children with disabilities)
- Raising a child up to four years old
- Taking care of another family member or other person with a disability certificate, residing in a common household with the employee
In practice, the above may trigger doubts and difficulties – the employers have already voiced concerns as to how this will work. It will definitely require the keeping of a balance between a necessity to ensure proper work organisation (e.g. remote work at the reception desk would seem not to be feasible) and employees’ legitimate interest. Groundless denial in the case of special category employees may lead to successful discrimination claims.
Remote Work Cessation
If remote work is introduced during the term of employment, both the employee and the employer may effectively request to cease the remote work. In such a case, the parties agree when the previous conditions of work will be restored. However, this will be no later than within 30 days.
Paperwork and Collaboration with Trade Unions or Employee Representatives
Except for occasional remote work (up to 24 days per calendar year), remote work will usually require some paperwork and collaboration with the trade union(s) or employee representatives. In particular, full-time remote work and hybrid work will require either agreement with the company trade union(s) or (if the parties failed to reach an agreement within 30 days) the introduction of internal policy. Internal policy may also be necessary if there is no trade union(s). However, in such a case, it will additionally require consultation with employee representatives. Alternatively, the employee and employer may enter into an individual agreement. Agreement(s) and/or internal policy will have to include several and detailed clauses specified in the new draft law. In the case of remote work introduced in the above-discussed exceptional circumstances, the employer will be obliged to issue detailed instructions.
The new draft provisions are often criticised as too formalistic and complicated, and very similar to telework, which, for the above reasons, was rarely adopted by Polish employers.