In order to prepare a company in time for the changes, employers should have already started drafting the principles of working remotely in accordance with the requirements set out in the proposed legislation. Below is a summary of the new regulations.
What is remote working?
The amendment introduces a definition for remote work, according to which it is work performed entirely or partially at a place indicated by the employee and agreed with the employer on a case-by-case basis, including the employee's home address, in particular using various means of direct communication at a distance. In practice, this means that in addition to full-time remote work, the new provisions also allow for hybrid work which is adapted to the specific needs and capabilities of both parties to the employment relationship.
What is the first step?
The employer should start the implementation of remote work by carrying out an occupational risk assessment. It is possible to draw up a universal risk assessment for the various different groups of jobs covered by remote working. Under the new regulations, remote working will not be allowed for personnel employed in particularly hazardous jobs where acceptable standards of physical factors are exceeded, or jobs with onerous and health-threatening chemical or biological factors.
How to introduce remote working?
Remote working can be determined by the parties at the stage of concluding the employment contract, as well as during the actual employment period. Distance working can be introduced at both the initiative of the employer or upon the request of the employee, based on the agreement of both parties to the employment relationship.
The decision to grant an employee the right to work remotely will, in principle, be at the employer’s discretion. However, the supervisor will have to take into account requests for remote working by an employee who is subject to special protection, e.g. due to pregnancy, childcare, or caring for a family member. A refusal in such a case will only be possible if performing work remotely is not possible due to the organisation or nature of the work.
On the other hand, an employee's request to cease working outside the company and restore the previous working conditions will be binding on the supervisor and will be subject to consideration within a period of no more than 30 days.
Unilaterally ordering an employee to work remotely will only be possible in the event of an state of emergency, a state of epidemic emergency, during a state of epidemic, or if the employer is unable to ensure safe or hygienic working conditions as a result of force majeure. An additional condition for instructing working from a distance in these situations will be a statement made by the employee that they have the premises and technical conditions enabling remote working.
What should be regulated in the internal regulations?
The detailed principles for remote working should be set out in the regulations after consultation with employee representatives or in an agreement between the employer and the trade union if one exists in the company. The amendment also allows the rules for remote working to be set out in an individual agreement with the person concerned where no agreement has been concluded or no regulations have been issued.
The internal regulations governing working from a distance should specify, among other things.
- the groups of employees who could be covered by remote working,
- the rules on how the employer is to cover the increased costs arising from working from home,
- the rules dealing with communication between the employee and the employer, and
- the rules for monitoring the performance of the employee's duties.
Companies will also need, in addition to any agreements with trade unions or bylaws, to prepare annexes to employment contracts, supplementary information on the terms and conditions of employment, information on the general health and safety rules for remote working, and carry out the aforementioned occupational risk assessment.
Work tools and reimbursement
It will be the employer's responsibility to provide the employee performing the work away from the workplace with the materials and tools necessary in order to perform the work remotely, including the installation, servicing, and maintenance of any technical equipment. The company will also have to cover the costs of the energy and telecommunication services necessary in order to perform the work from home, including a lump sum corresponding to the expected costs to be incurred by the employee in performing their work outside the workplace. The reimbursement will not constitute income and will be exempt from tax and social security contributions. The amendment does not specify either a minimum or maximum lump sum.
How has occasional remote working been regulated?
Work outside the company can also be performed on an occasional basis, at the employee's request, to a maximum of 24 days per calendar year. Employers will, as a general rule, be obliged to grant employees' requests in this respect, insofar as the nature of the work allows. Occasional remote working will involve fewer formalities on the part of the employing entities, in particular, they will not be obliged to cover the costs of remote working or to verify whether the place of work in terms of health and safety or information security and protection requirements have been achieved.
When will the new regulations come into force?
The amendment to the Labour Code was passed by the Sejm (the lower house of the Parliament) on 1 December and was referred to the Senate (the upper house of the Parliament) where it will be processed at the next session on 14-16 December. We anticipate that the new regulations will come into force this coming spring, most likely end of March, beginning of April 2023.
Should you have any questions or concerns concerning the new remote working rules, please do not hesitate to contact us.
Authored by Agnieszka Szczodra-Hajduk, Aleksandra Sudak-Przybyla and Karolina Debiec.