How is remote work regulated in Poland?

Introduction
Is remote work during quarantine or isolation permitted?
Interpretation problems

Introduction

During the COVID-19 pandemic many companies have decided to let their employees work from home. However, the issue of remote work is often problematic for Polish employers as it is not regulated in the Labour Code, which regulates only telework.

'Telework' is defined as "work that is performed outside the employing establishment on a regular basis using information technologies within the meaning of the applicable provisions on services provided electronically".

However, remote work has been temporarily regulated by anti-COVID-19 ad hoc regulations. Under these provisions, 'remote work' is defined as "work that is specified in the employment contract, performed for a specified period of time outside the place of its permanent performance". Remote work is characterised by the fact that it is occasionally used by and leads to greater flexibility for employees.

Some specific rules for remote work were introduced by anti-COVID-19 ad hoc regulations. According to these regulations:

• employees can work remotely if:
  • they have sufficient technical and housing conditions to perform work remotely; and
  • the type of work may be performed remotely;
• employers should provide the resources, materials and logistics services necessary to perform remote work;
• employees may use their own resources if the security of information and personal data is ensured; and
• employees performing remote work should keep a record of activities performed according to their employer's instructions.

Under these anti-COVID-19 ad hoc regulations, the possibility to work remotely depends only on employers' decisions and may be ordered for a defined period during the state of epidemic threat or epidemic, and for three months after the cancellation of either of those states of emergency.

The Ministry of Family, Labour and Social Policy has launched legislative efforts to amend the Labour Code to systemically regulate remote work. Preliminary proposals regulating remote work were provided to various industry groups for consultation. The new regulations aim to supersede the existing provisions on teleworking. The bill:

• defines remote work; and
• indicates the requirements:
  • to set out rules of remote work in the form of an agreement or regulations depending on whether the workplace is unionised;
  • for employees who work remotely to have appropriate premises and technical equipment and infrastructure available; and
  • that employers must follow to supervise the performance of remote work.

However, the bill has not yet been officially published on the Government Centre for Legislation's website and it is unclear what further steps are being taken in that regard at present.

Is remote work during quarantine or isolation permitted?

Quarantine and isolation during the COVID-19 pandemic have become part of everyday life. However, are employees in Poland permitted to work remotely during these periods?

Quarantine
Under Polish law, 'quarantine' is defined as "isolating a healthy person who was exposed to infection to prevent the spread of particularly dangerous and highly contagious diseases". During quarantine, employees are capable of performing work. They are generally healthy and must only avoid contact with other people to reduce the potential risk of contamination. Quarantine is not the same as an incapacity to work due to illness.

Current regulations do not prohibit remote work during quarantine and the newly adopted amendment on combating crisis situations connected with COVID-19 will explicitly allow such work. However, the amendments are not yet binding and await publication. The literal wording of the amendments suggests that remote work during quarantine should be based on employee initiative and with employer consent.

If employees decide to work remotely during quarantine they will be unentitled to sickness benefit, but will be entitled to normal remuneration. According to the Labour State Inspectorate, employees may refuse to work remotely during quarantine and employers cannot force them to carry out their job. This opinion is not based directly on legislation but to avoid any doubts, employees and employers should agree to perform remote work during this period.

Isolation
Anyone who tests positive for COVID-19 is referred to as being in isolation. There are different approaches to the possibility of working during isolation, including treating isolation as being on par with incapacity to carry out work and therefore barring work during this period. In contrast, other opinions suggest that if employees feel well and their health allows, they can work remotely. However, according to the latest positions taken by the Labour State Inspectorate and the Social Insurance Institution, work while in isolation is prohibited.

Interpretation problems

The current regulations have not kept up with the changing circumstances and therefore pose difficulties regarding interpretation for employers and even the Labour State Inspectorate and the Social Insurance Institution. Controversy surrounds these issues and the position expressed by officials changes frequently; thus, employers should be careful and monitor both the situation and opinions presented by officials.

For further information on this topic please contact Agnieszka Fedor at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000) or email (agnieszka.fedor@skslegal.pl). The Sołtysiński Kawecki & Szlęzak website can be accessed at www.skslegal.pl.