Further changes to the Labor Code come into force on 7 April. The new regulations include, first of all, the introduction of a definition of remote work, which may be performed entirely or partially outside the employer’s premises. Here’s everything you need to know.
The amendment to the Labor Code, which entered into force on April 7, repeals the existing provisions on teleworking. The amendment provides that remote work may be performed in whole or in part in a place indicated by the employee and each time agreed with the employer.
Three types of remote work
The consulting company Grant Thornton distinguished three types of remote work:
1. “Proper” remote work – wholly or partially performed outside the workplace, but the place of its performance must be agreed with the employer.
2. Remote work performed at the employer’s request – issued only for a definite period of time and for objective reasons, fortuitous and independent of the employer.
3. Occasional remote work – performed up to 24 days a year at the employee’s request.
Remote work – how to introduce it?
As explained by Kancelaria Adwokacka Sawicki i Wspólnicy, the parties to the employment contract may agree on remote work by the employee in two ways.
1. “When concluding an employment contract, the parties may decide that the work will be performed remotely, and in this case, in order to change the conditions of performing work to stationary work, it is necessary to reach an agreement between the employee and the employer or to terminate the working conditions on general terms” – they indicated lawyers.
2. They also explained that “remote work can be introduced during employment” and there are “several modes of introducing remote work”.
Who can work remotely?
“Admission of an employee to remote work depends on the submission of an appropriate application and a statement on having the premises and technical conditions to perform remote work” – explained Sawicki & Partners Law Firm.
She added that “the rules for remote work are defined in an agreement concluded between the employer and the trade union organization” or trade union organizations, if there are more of them. However, if there are no trade unions operating at a given employer, the employer defines the rules for remote work in the regulations after consultation with employees’ representatives.
The Ministry of Family and Social Policy explained in what circumstances it is permissible to conclude an individual agreement with an employee specifying the rules for remote work. According to the ministry, an agreement with an employee may be concluded when a company agreement (or regulations) has not been concluded.
Remote work – specific groups of employees
According to the Ministry of Labor and Social Policy, the application for remote work is binding on the employer in certain cases.
Among them, the ministry listed applications submitted by:
– a pregnant employee, – an employee raising a child up to the age of 4, – an employee taking care of another member of the immediate family or another person remaining in the same household, with a certificate of disability or a certificate of severe disability, – an employee a parent of a child with a certificate of support for pregnant women and families under the “For Life” program, a certificate of severe and irreversible disability or an incurable life-threatening disease that occurred in the prenatal period of the child’s development or during childbirth, a certificate of disability or a certificate of a moderate or severe degree of disability specified in the provisions on vocational and social rehabilitation and employment of disabled people, – educational.
That is, the employer must take into account the request received from such persons, unless it is impossible due to the organization of work or the type of work performed by the employee.
Who can’t work remotely?
According to Kancelaria Adwokacka Sawicki i Wspólnicy, the legislator excluded certain types of work from the possibility of remote work, including:
– particularly dangerous work, – work as a result of which the permissible standards of physical factors specified for living quarters are exceeded, – work with hazardous chemical agents, – work related to the use or release of harmful biological agents, radioactive substances and other substances or mixtures that emit nuisance odours, – work causing heavy soiling.
Can you combine types of remote work?
– An employee who agrees with the employer to work remotely for, for example, 3 days in each working week (so-called hybrid work), may additionally apply for occasional remote work, for example, to work from home for 5 days in a given week – explained Anna Zielińska , specialist of the ClickMeeting webinar platform.
Remote work – the amount of the allowance
– When implementing remote work, it seems to be the most troublesome determining the amount of the so-called allowance for remote work, i.e. costs that are necessary to provide remote work and directly related to it. The Labor Code obliges employers to cover only the costs of electricity and telecommunications services – Zielińska pointed out.
She explained that “the legislator did not suggest the rules according to which these costs should be calculated and each employer must come up with a way to calculate them himself”.
– Practice shows that there are many different ways to calculate such costs, and their amount is really diverse, as it can range from about PLN 2.50 per day to about PLN 100-150 per month. The employer in the event of possible inspections from the Tax Office (Tax Office – ed.) or ZUS (Social Insurance Institution – ed.) should keep the calculations of the amount of such an allowance for remote work together with the sources on which it was based, such as the offers of Internet providers – said Zielińska.
Remote work – place of work
As explained by the Ministry of Labor and Social Policy, the new regulations do not exclude the possibility of performing duties as part of remote work from several different places. However, they must be indicated by the employee and each time agreed with the employer.
The resort also answered the question, whether the employee can perform remote work, e.g. from an internet cafe. As the ministry emphasized, the parties may agree that remote work will be performed in different places, about which the employee will inform the employer each time. Importantly, the regulations do not allow the employee to choose the place of remote work completely freely, i.e. without consulting the employer.
Remote work ordered by the employer
In some cases, the employer may as well recommend, and not agree with the employee, to perform remote work. According to the Ministry of Family, the employer has such a possibility in certain situations:
– during the period of the state of emergency, state of epidemic threat or state of epidemic and within 3 months after their cancellation, – during the period in which it is temporarily impossible for the employer to provide safe and hygienic working conditions at the employee’s current place of work due to force majeure (e.g. destruction of the workplace due to fire).
However, the employer cannot commission such work if the employee does not have the appropriate premises and technical conditions. Before changing the formula for performing duties, the employee must provide the employer with a special statement in this regard.
Remote work – employer’s obligations
What obligations regarding remote work does the employer have under the new regulations?
As pointed out by Sawicki i Wspólnicy Law Firm, “according to the new regulations, the employer is obliged to:
1) provide the employee performing remote work with materials and work tools, including technical devices, necessary to perform remote work,
2) provide the employee performing remote work with the installation, service and maintenance of work tools, including technical devices, necessary to perform remote work or cover the necessary costs related to the installation, service, operation and maintenance of work tools, as well as cover the costs of electricity and telecommunications services necessary to perform remote work,
3) cover other costs directly related to the performance of remote work, if the reimbursement of such costs was specified in the agreement, regulations or order,
4) provide the employee performing remote work with training and technical assistance necessary to perform this work.
The lawyers emphasized that “the parties establish the rules for the use by an employee performing remote work of materials and work tools not provided by the employer”, and “an employee performing remote work is then entitled to a cash equivalent in the amount agreed with the employer or a lump sum, the amount of which corresponds to the expected costs incurred by the employee in related to remote work.
Withdrawal from remote work
Another issue addressed by the family ministry is that whether in each case the employer can “take back” the employee from remote work to stationary work.
As explained by the family ministry, if remote work is performed on the basis of the previously discussed order, the employer may withdraw the order to perform remote work at any time, with at least two days’ notice.
The situation is different in the case of taking up remote work during employment. “Each party may submit a binding request to stop remote work and restore the previous conditions of work. The parties agree on a date for restoring the previous conditions of work, no longer than 30 days from the date of receipt of the request,” we read.
However, if it is agreed to perform remote work when concluding an employment contract, it is generally not possible to withdraw consent to remote work and reinstate the employee to work in the current place (e.g. in the office).
Sobriety control during remote work?
The Ministry of Labor and Social Policy also explained whether a remote worker can be subject to a sobriety test.
“It does not seem possible for employees performing remote work to meet the conditions for sobriety control or control for the presence of substances similar to alcohol, such controls can be carried out when they are necessary to ensure the protection of life and health of employees or other people or the protection of property” – it said. .
“However, if employees performing remote work meet the conditions contained in the regulations being introduced, they may be subject to appropriate control, because it is the employer who determines the group or groups of employees subject to control and the manner of its implementation” – emphasized the ministry.
The same amendment to the Labor Code introduced the possibility for employers to control the sobriety of employees when it is necessary to protect the life and health of employees, other people or property. The regulations on this matter came into force on February 21.
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