More precise outline of remote working

In March 2021, a year passed from many employees having started remote work due to the pandemic of coronavirus.

Remote working has its advocates both among employees and employers. Many of employers have already announced that they do not intend to waive remote working after the state of epidemic and will leave such an option, at least partially.

In turn, as far as employees are concerned, the latest research made by Pracuj.pl indicates that almost 9 out of 10 respondents working remotely during the pandemic would like to maintain such a model after the end of the pandemic. 13% respondents are willing to work outside office on a full-time basis and 27% want to work remotely several days a month.

Given the new reality, the demand for providing for remote working by law is expressed louder and louder in order to make principles for such work clear and precise for both parties to employment. In response to such expectations, the Ministry of Development, Labour and Technology prepared draft amendments to the Labour Code.

In the response given by the Ministry of Development, Labour and Technology to the parliamentary question No. 20116 of 4 March 2021 [read here], designed regulations on remote working are presented in more detail.

At the beginning of April 2021, the prawo.pl website also managed to get to the latest version of the draft act on amendments to the Labour Code and certain other acts, which is still developed and which is to incorporate regulations on remote working.

Given the latest assumptions, remote working will be possible, fully or partially, at the employee’s place of residence or any other place agreed by the employee and employer, in particular by the use of remote communication media. Thus, the above indicates that remote working could be performed at various places, however provided that those places are agreed with the employer (it is possible that several places for remote working can be used, but the employee will have to inform the employer about each place on a case-by-case basis). What is important, the draft regulation does not allow for a complete freedom of choice of place for remote working by the employee, i.e. without the employer’s consent. In the response to the parliamentary question, the Ministry of Development, Labour and Technology underlines that both the employer and employee will be allowed to impose the place for remote working upon the other party. Let also note the phrase that remote working could be “in particular” performed by the use of remote communication media. This means that remote working would have a broader meaning than home office.

As the prawo.pl website informs, arrangements on duties subject to remote working would be made either at the recruitment stage (i.e., as drafted, as at the employment contract date) or during employment. As far as relations between the employer and the employee are concerned, the employer, during employment, will be able to order the employee to work remotely in two cases: (1) during the extraordinary state, the state of epidemic threat or the state of epidemic and during 3 months from the cancellation of such a state; or (2) if necessary, given the employer’s obligation to provide safe and healthy working conditions to the employee if, for reasons being beyond the employer’s control, it is not temporarily possible to assure such conditions in the employee’s place of work. The employee will be able to work remotely provided that they present a prior written or electronic statement on having relevant accommodation and technical conditions for such work.

Principles for remote working may be defined in an agreement to be entered into between the employer and the company’s trade unions. The agreement will have to be executed within 30 days of the presentation of a draft agreement by the employer. Then, if the agreement is not entered into, the employer will be able to define and incorporate principles for remote working in the company’s rules.

Apart from principles for remote working, the agreement will also provide for:

• groups of employees that may work remotely;
• principles for the employer paying the direct costs of remote working;
• principles for cash equivalents;
• principles for the employer communicating with the employee working remotely, including the confirmation of the employee’s presence at work during remote working;
• the method and form of work performance by the employee working remotely.

It is important to note that if the employer or employee confirm that they want to give up such a form of work, either party will be able, within 3 months of the commencement of remote working, make such a request and expect that previous working conditions will be recovered. The employee will have to come back to work under previous terms and conditions within no more than 30 days of the request receipt. In turn, the employer will not be able to terminate the employment contract if the employee refuses to accept a change in the conditions of work and the end of remote working. The planned regulations also forbid any discrimination against employees because of remote work or refusal to work remotely.

In relation to its employees who work remotely, the employer will also have to:

• provide materials and working tools necessary to perform remote work;
• insure working tools necessary to perform remote work;
• pay the direct cost of remote working, including in particular cost connected with the installation, maintenance, operation and service of working tools necessary to perform remote work, as well as the cost of electricity and access to telecommunication lines;
• provide the employee with technical support and necessary training on the operation of working tools that are necessary to perform remote work.

The employer will also be able, in agreement with employees who work remotely, to define principles for the use of the employee’s own materials and tools necessary to perform remote work. In that case, the employee that works remotely will be entitled to a cash equivalent of an amount agreed with the employer. The equivalent could be replaced with a lump sum which would correspond to costs incurred by the employee in connection with remote working.

The draft regulations also enable the employer to conduct an inspection in the place of remote work during the employee’s working hours. Such an inspection could include:

• the performance of work;
• the installation, stock-taking, maintenance, service or repair of working tools provided to the employee;
• occupational safety and health.

The inspection could be conducted only with the employee’s prior consent to be given in writing, electronically or as otherwise agreed with the employer. The employer will have to adjust the inspection to the place and character of remote work. Inspection activities could neither violate the privacy of the employee working remotely and other persons nor disturb the use of home facilities as intended.

In addition, the new regulations stipulate that before the employee is permitted to work remotely, the employer will have to assess occupational risks and, based on the outcome of such an assessment, prepare information concerning principles for safe and healthy remote working, including, in particular, the impact of such work on the employee’s sight and musculoskeletal system. The employer will be able to prepare a universal assessment of occupational risk for particular groups of remote jobs. In turn, the employee, before being admitted to remote work, will have to familiarise themselves and comply with the occupational risk assessment made and the information concerning safe and healthy performance of remote work, as prepared by the employer.

In addition, the employee will have to make a statement confirming that the place where remote work will be performed in the employee’s place of residence or another location agreed between the employee and employer guarantees safe and healthy working conditions. The draft also sets forth that the employee will be responsible for the proper organisation of their place of remote work, including ergonomic requirements. This means that the employer will be, in that case, exempted from some obligations, including an obligation to organise the place of work, take care of the condition of working premises and technical equipment, requirements concerning construction facilities and working premises, an obligation to provide employees with hygienic and sanitary facilities and personal care products.

The draft also refers to an accident at work. In accordance with new assumptions, if the employee notifies the employer of an accident at work, the employee will be deemed to have agreed to the employer inspecting the place of the accident. The inspection is to be carried out immediately upon the accident during remote work having been reported at time agreed between the employee and the employer. The accident investigation team will be able to waive the inspection if they decide that the circumstances of and reasons for the accident are not doubtful.

The act is to come into force 3 months after the cancellation of the state of epidemic enforced due to COVID-19, provided that the state is cancelled all over Poland. And in the case of the enforcement of the state of epidemic threat due to COVID-19, if that state is cancelled all over Poland.

Marta Strzecha-Bociąga, Attorney-at-law