What changes are introduced by the amendment to the Labor Code?
On April 7, 2023, new regulations on remote work will go into effect. An amendment to the Labor Code has already been published on February 6, so we know exactly what will change and how it will affect employees and employers. The latest legislation is not just a matter of controlling remote work – the legislature has leaned into the issue of non-standard workplaces in general. This will make the current telework regulations obsolete. What changes should we prepare for?
Definition of remote work
Although it is hard to believe, until now Polish law has lacked a clear and unambiguous definition of remote work. Given that it’s been more than two years since the outbreak of the pandemic, which dramatically changed the labor market, this may come as a surprise. By working remotely, the employee has gained more flexibility and saved time and resources for commuting – so it’s not surprising that despite the end of the pandemic, many people have remained at home to continue working from there. The new regulations are meant to clarify many issues, but while solving a few problems, they immediately create new ones.
As an example, according to the amendments to the Labor Code, remote work means the performance of duties by an employee at a place agreed with the employer from time to time, including at the employee’s home address, in particular by means of direct communication. Moreover, it will be necessary to submit a paper or electronic application in advance.
Some interpretations of the regulations indicate that an employee will not be able to change his place of work at will (for example, from an apartment to a café or from a coworking space to an apartment) without first filing an application, which will generate additional problems if the existing remote work location, for example, runs out of internet or electricity.
New powers, opportunities and responsibilities
The new regulations also allow an entrepreneur to direct employees to work remotely during a state of emergency, a state of epidemic emergency, a state of emergency, or during a period when the employer cannot provide safe and hygienic working conditions at the usual workplace.
The employer must also determine the rules for performing remote work – the way to determine these rules can be an agreement between the employer and the company’s trade union organization or regulations set by the employer. It is also permissible to define the rules of remote work individually – in agreement with the employee.
The last option is the order of the employer – the entrepreneur can give an order to perform remote work, but this applies to the previously mentioned exceptional circumstances.
An employee has the right to apply for remote work, which the employer cannot reject under several circumstances:
- When the requesting employee is pregnant,
- When the applicant is raising a child who has not reached the age of 4. year of age;
- when the applicant cares for another member of the immediate family or a person in a joint household who has a disability or severe disability certificate;
- When the applicant is a parent and has a certificate of a complicated pregnancy or is in a situation of obstetric failure;
- when the applicant is the parent of a child with a moderate or severe disability certificate (even if the offspring is over 18);
- when the applicant is a parent of a child who has an opinion on the need for early support of his or her development, a statement on the need for special education or a statement on the need for remedial classes (even if the descendant is over 18 years of age).
In the above-mentioned cases, the only possibility of rejection may be if it is not possible to perform work remotely due to the organization of work or the type of work performed by the employee. The employer must justify such refusal on paper or electronically within 7 working days of the application.
Doubts have been raised about the possibility of rejecting an application on the grounds of “work organization” at the workplace – this provision is vague, and there will certainly be a need for individual interpretations to resolve potential conflicts.
Types of remote work control
As we mentioned in the introduction, under the new regulations, the employer will have the ability (not the obligation) to carry out inspection activities at the remote work site. Control of remote work is subject to rules that must be established in advance in the regulations, remote work order or agreement. Commentators warn that the letter of the current law allows an employer to enter an employee’s apartment to conduct an inspection. What specifically can an employer check?
First: the performance of remote work – under this term falls the presence of the employee at the place of work he declared and the performance of duties during the agreed working hours.
Second: compliance with health and safety rules.
Third: comply with information security and protection requirements, including data protection procedures.
Proper conduct of inspections – conditions
Although with the amendment of the Labor Code, employers will be given the right to conduct inspections, in practice, monitoring remote work is not so easy. An employer cannot simply visit an employee at home unannounced. As it stands, the regulations are far from precise about how such control of remote work should take place. There are only three points in the law on the basis of which the employer should inspect.
First: the employer may carry out the inspection in consultation with the employee, at the place designated by the employee as the place where he performs remote work and during the hours when he performs remote work.
Second: the employer must adjust the method of inspection to the place of work and the type of work performed.
Third: the execution of inspection activities must not violate the right to privacy of the employee or other persons present at the inspection site.
Provisions on the rules for controlling the performance of remote work are found in Art. 6728. §1 Laws of December 1, 2022. On amending the Labor Code Act and some other acts.
Irregularities detected in the course of an audit – what next?
An inspection conducted at a remote work site may end up finding irregularities. Whether the failures relate to compliance with health and safety regulations and rules, performance of duties assigned by the employer or compliance with information protection and data security requirements, the employer can take specific action.
First: it can oblige the employee to make changes that will enable the inspection to pass. In this case, the employer should set a deadline for the employee to make the correction.
Second: he can withdraw his consent to do remote work. In such an arrangement, the employer indicates the date from which the employee will be required to perform his duties at the usual place of work.
Summary
At the moment, it is difficult to assess how the introduction of the new regulations will affect actual use. Will employers willingly start using their authority to control employees at the remote work site? Such a scenario seems unlikely, though not impossible.
Certainly, however, many employees would be wary of an employer visiting them at their place of residence and inspecting their home premises to verify that they are complying with health and safety rules and maintaining data protection procedures. Moreover, although the regulations speak of the employer’s right to inspect, it is vain to find in them information on how to proceed in the event of a refusal to inspect.
Implicitly, this will probably result in the withdrawal of permission to perform remote work, but it still seems that the provisions for controlling remote work may lead to conflicts between the employer and the employee.
