The spread of coronavirus and the declaration of an epidemiological risk have meant that both employees and employers need to learn how to function in the new reality that we will live in for some time. The Act of 2 March 2020 on special arrangements for the prevention, counteraction and combating COVID-19, other infectious diseases and the crisis situations caused by them introduced the possibility of remote working. The new situation raises a number of doubts, both on the part of employees and employers. Below are the answers to the questions on labour law. We invite you to contact the Law Firm’s team with regard to any questions or doubts you may have.
1. Is every employer obliged to instruct employees to work remotely?
The employer, if possible due to the nature of the work, may instruct the employee to perform remote work. Remote working may not be possible at every position. The Act of 2 March 2020 on special arrangements for the prevention, counteraction and combating COVID-19, other infectious diseases and the crisis situations caused by them introduced the possibility of the employer to instruct the employee to work remotely, but not obligation. However, the employer must remember that its duty as set out in the Labour Code is to protect the health and life of employees.
2. How long can an employee work remotely?
The Act of 2 March 2020 on special arrangements for the prevention, counteraction and combating COVID-19, other infectious diseases and the crisis situations caused by them stipulates that the employer, when instructing the employee to work remotely, should indicate a specific time, e.g. the instruct the employee to work remotely for 2 weeks. Of course, this period can be extended if necessary.
3. Does the employee have to follow the employer’s instructions for remote working?
The provision of remote working, when instructed by the employer, in order to counteract COVID-19, is the responsibility of the employee. Therefore, if an employee refuses to follow the employer’s instructions to work remotely, this may even result in termination of the employment contract with the employee.
4. How to organise remote working?
Remote working consists of working outside the place of permanent work. Remote working is a broader concept than teleworking. The Labour Law does not provide a definition of remote work, so there are no detailed solutions in this respect. The employer should therefore define the procedures related to remote working, i.a. the obligation to report working time by sending e-mails or by means of ICT systems, receiving instructions from the employer to be carried out or accounted for during a specific working day.
5. How to prepare a workplace to function during an epidemiological emergency?
If the employer is unable to instruct employees to perform remote work, it should organise the operation of the workplace in such a way as to ensure maximum safety for the employees and prevent the spread of coronavirus. Such actions include, among others:
- informing employees of the risks,
- equipping employees with personal protective equipment,
- cancelling meetings,
- communicating by means of remote communication,
- providing employees with hand disinfectants,
- paying special attention to hygiene issues (cleanliness of workstations and places where workers often stay, e.g. dining rooms or lavatories),
- placing information on how to effectively wash hands in a visible place.
6. Can an employee refuse to work because of fear of contracting coronavirus?
It is the duty of the employee to come to work and perform his or her duties. The exception is provided for in Article 210 § 1 of the Labour Code: If the conditions of work do not correspond to the provisions on health and safety at work and pose a direct danger to the health or life of an employee, or if the work performed by the employee presents a threat of such a danger to other people, the employee has the right to refrain from work and to notify his superior immediately. It follows that an employee may refuse to work, but only if the working conditions do not comply with health and safety regulations and constitute a direct threat to the health or life of the employee, e.g. the employee, referring to the recommendations and communications of the Ministry of Foreign Affairs or the State Sanitary Inspectorate, indicating the countries to which travel is not recommended due to a high risk of COVID-19 infection, may refuse to travel to such a country.
7. Can the employer order additional medical examinations to exclude the presence of coronavirus among employees?
The employer cannot order additional medical examinations to rule out the presence of coronavirus among employees.
According to the position of the National Labour Inspectorate, the employer is not entitled to make an independent assessment of the employee’s health. Not letting an employee work because of a potential virus infection can expose the employer to harassment or mobbing charges.
8. What to do with employees when the workplace has closed down or cannot function due to an epidemiological emergency?
The employer may not, without the employee’s consent, instruct the employee to take holiday leave or to take unpaid leave. Holiday leave should be agreed with the employee. The employer only has the option of not allowing the employee to work during the period in which he or she has a scheduled date of leave in the leave plan (if leave plans are kept in the company). The exception is the overdue leave. If an employee has unused overdue leave, the employer has the right to send the employee on that leave – even without his/her consent. Unpaid leave shall be granted only at the request of the employee, also during times of epidemiological risk.
A situation preventing employees from performing work for which the employer is responsible and the employees are ready to do it should result in temporary suspension stoppage.
9. What are the consequences for the employer of introducing a temporary stoppage due to an epidemiological emergency?
In most cases, the closure of a company prevents employees from working. Nevertheless, these employees are ready to work. According to the position of the National Labour Inspectorate, the necessity to close down a plant in order to counteract COVID-19 will be the responsibility of the employer, even though it will not attributable to the employer. Consequently, Article 81 of the Labour Code on work stoppage will apply to such a case. For the employer this means that it will be required to pay the employee the salary resulting from its personal position classification at an hourly or monthly rate. However, if such a wage component has not been identified when determining the terms and conditions of remuneration, the employee is entitled to 60% of the wage (this applies, for example, to employees who receive piece rate or commission pay).
The remuneration determined according to the above rules should be paid for the entire period of the stoppage. In any case, however, this wage must not be lower than the minimum wage.
10. How to treat a quarantined worker?
An employee in quarantine is treated as unfit for work even if he or she is not ill. The decision to quarantine or isolate a person staying on the territory of the Republic of Poland if that person is infected has a contagious disease or is suspected of being infected or has had contact with a source of the biological pathogen may be made by the State Health Inspector or the Border Health Inspector.
The decision of the health inspector is the basis for the payment of sickness benefits under general rules. If the insured voluntarily abstains from work (without the applicable medical certificate or decision of the health inspector), that person is not entitled to cash benefits in case of illness.
During the quarantine, the employer should not have the employee work remotely.
Author: Marta Strzecha-Bociąga, attorney-at-law, Izabella Żyglicka i Wspólnicy
Revision: 18 March 2020