Remote work has been entered into the Labor Code. When can an employer instruct an employee to work remotely? Can the employer “remove” an employee from remote work to stationary work in each case? Do employers have to reimburse employees for, for example, water and office space used in the apartment? These are just some of the questions answered by the Ministry of Family and Social Policy.
A definition was introduced to the Labor Code on April 7 remote work. It is the performance of work in whole or in part in the place indicated by the employee and each time agreed with the employer, including at the employee’s residence address, in particular using means of direct remote communication.
The Minister of Family and Social Policy Marlena Maląg stressed that “this is an important day for the labor market in Poland”. The ministry pointed out that the changes to the Labor Code are a response to the changing trends on the labor market, as well as the expectations of employees and employers.
The Ministry of Labor and Social Policy has prepared “answers to the most frequently asked questions on this topic”.
Do employees have the ability to work remotely from more than one location?
The ministry said that the definition of remote work contained in the Labor Code does not exclude such a possibility, provided that “these places will be agreed with the employer each time”.
This means that you can work remotely, e.g. from an internet cafe. “The place of remote work, regardless of whether it is the employee’s place of residence or another place selected by the employee and approved by the employer, will always be the subject of mutual agreement between the parties to the employment relationship” – explained the family ministry.
The parties may agree that remote work will be performed in different places, about which the employee will inform the employer each time.
Is the application for remote work binding for the employer?
The Ministry of Labor and Social Policy has listed several groups of people for whom the employer will, in principle, have to consider the request for remote work.
It concerns: an employee who is a parent of a child with a certificate of disability or a certificate of moderate or severe disability; a pregnant employee, an employee raising a child up to the age of 4; an employee who takes care of another member of the immediate family or another person remaining in the same household, who has a certificate of disability or a significant degree of disability.
A binding application means that the employer is obliged to take into account the application of the said employees, unless it is impossible due to the organization of work or the type of work performed by the employee. In this case, the employer will have to inform the employee about the reason for refusing to accept the application in paper or electronic form within 7 working days from the date of submission of the application.
Does the employer have to accept the employee’s request for occasional remote work?
The amendment introduced to the Labor Code occasional remote work, performed up to 24 days a year at the employee’s request. The dimension of 24 days “is independent of working time employee (full-time working hours), as well as the number of hours resulting from the working time schedule on the day when the employee performs work in the aforementioned mode.
However, as emphasized by the Ministry of Labor and Social Policy, “the employee’s request for occasional remote work is not binding on the employer, so the employer may refuse to accept it”.
When can an employer instruct an employee to work remotely?
The Ministry of Family and Social Policy pointed out that the employer may recommend, without consulting the employee, the performance of remote work:
– 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).
It was also noted that “such an order is possible if the employee, immediately before issuing it, makes a statement that he has the premises and technical conditions to perform remote work”.
The new regulations allow for the conclusion of an individual agreement with an employee specifying the rules for remote work. The condition is, however, that a company agreement (or regulations) has not been concluded beforehand. “So this means every case in which there is no internal act regulating the rules of remote work at the workplace. Recommendation of remote work may also be covered by the scope of the company agreement (or regulations)” – we read in the reply.
Can the employer “remove” an employee from remote work to stationary work in each case?
The employer may withdraw an employee at any time in the case of remote work performed on the basis of a recommendation. Withdrawal should be made at least two days in advance.
In the event of agreeing 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), the family ministry noted.
In turn, in the case of remote work during employment, “each party may submit a binding request to cease remote work and restore the previous conditions of work”.
“The parties agree on the date of restoring the previous conditions of work performance, not longer than 30 days from the date of receipt of the application. In the absence of an agreement, the restoration of the previous conditions of work performance takes place on the day following the expiry of 30 days from the date of receipt of the application” – the ministry explained. Importantly, the employer’s entitlement in this respect will not apply to employees who perform remote work at their own request – binding for the employer. An exception may be a situation where further remote work will not be possible due to the organization of work or the type of work performed by the employee.
Should costs be charged separately for each employee, e.g. for electricity?
As explained, detailed rules for the employer to cover the costs of remote work – and for determining the cash equivalent or lump sum – will be a mandatory element of the internal company agreement or regulations or the agreement with the employee in the event that no company agreement has been concluded or regulations have not been issued. Importantly, the technical issues related to determining the amount of benefits were left to the parties’ decision and regulations at the company level.
The Act only indicates that when determining the amount of the equivalent or lump sum, one should take into account, in particular, standards for the consumption of materials and work tools, including technical devices, their documented market prices and the amount of material used for the needs of the employer and market prices of this material, as well as electricity consumption standards and the cost of telecommunications services.
Mandatory coverage of costs will only apply to the costs of electricity and telecommunications services necessary to perform remote work. Therefore, it does not include the costs of water consumption or the use of space in the house, unless regulations regarding the obligation to reimburse such costs have not been introduced into internal company legal acts (agreements or regulations) – the ministry noted.
Is the employer obliged to provide an employee performing remote work with a desk and a chair?
According to the new regulations, immediately before issuing an order to work remotely, the employee will have to submit a statement in paper or electronic form that he has the premises and technical conditions to perform such work. The family ministry indicated that it is the employee who assesses his housing and technical conditions, “which means that the employer will not be able to verify or challenge it.”
The Ministry pointed out that the employer is obliged to cover other than necessary costs related to the installation, service, operation and maintenance of work tools, including technical devices, necessary to perform remote work – if the reimbursement of such costs has been specified in the remote work order, regulations or agreement.
Can a remote worker be subject to a sobriety test?
According to the family ministry, “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 covered by the control and the method of its implementation”.
Main photo source: Shutterstock