From 7 April 2023, new provisions of the Labour Code (Art. 6718-6734) on remote work will come into force, pursuant to the amendment to the Act of 1 December 2022 amending the Act – Labour Code and certain other acts (Journal of Laws 2023, item 240) passed by the Sejm in December 2022.
“Art. 67. Work may be performed wholly or partly at the place indicated by the employee and agreed with the employer in each case, including at the employee’s home address, in particular with the use of means of direct communication at a distance (remote work).”
Following the changes, employees will be able to benefit from permanent remote working under the Labour Code, rather than under the so-called “covid act”. According to the new regulations, remote work locations must be agreed with the employer. In exceptional situations, the employer has the right to offer remote work, but the employee will have to confirm that he or she has the conditions for this type of work.
What is remote working?
As a general rule, telework or remote working is the performance of all or part of a function at a place indicated by the employee and agreed in each case with the employer (an application must be submitted), including the employee’s place of residence, in particular by means of direct remote communication. As a general rule, this will be the employee’s place of residence or other place(s) chosen by the employee and agreed to by the employer. The parties may agree that the remote work will be carried out in different locations, with the employee notifying the employer in each case.
Is the request for remote working binding on the employer?
The employer is obliged to grant the employee’s request, unless this is not possible due to the organisation of work or the type of work performed by the employee. In such a case, the employer must notify the employee of the reason for refusing the request, either on paper or electronically, within 7 working days of the request.
The amendment introduces the possibility to waive remote working for both employers and employees. The parties must agree on a deadline for the reinstatement of the previous working conditions, no later than 30 days from the date of receipt of the request.
When an employer cannot refuse remote working?
The change is that remote working will be able to be agreed already at the conclusion of the employment contract. Employees will have to request remote working.
The employer cannot refuse remote working in the case of:
- pregnant employees,
- an employee bringing up children under the age of 4,
- an employee caring for another member of the immediate family or another person living at home who has a disability or severe disability certificate,
- an employee-parent of a child with a certificate of complicated pregnancy and in case of obstetric failure,
- an employee-parent of a child with a certificate of disability or a certificate of moderate or severe disability as defined in the legislation on the professional and social inclusion and employment of a child of a person with disabilities (also after the age of 18),
- employee-parent of a child with an evaluation on the need for early support of child development, an evaluation on the need for special education or an evaluation on the need for rehabilitation and educational courses (also after the age of 18).
Remote working at the employee’s request
Each employee is entitled to 24 days of remote work per calendar year. The rule must be applied in cases justified solely by the needs of the employee. An example would be the need to care for a family member.
What obligations does an employer have towards a remote worker?
The amended Labour Code sets out in detail the obligations of employers towards remote workers. Employers will be required to:
provide remote workers with work tools and equipment;
provide installation, servicing and maintenance of work tools, including technical equipment, necessary to perform remote work or cover the necessary expenses;
cover the costs of electrical and telecommunications services;
cover other costs directly related to remote working;
provide employees with the training and technical support needed to carry out remote work;
determine an amount corresponding to the use of, for example, the employee’s personal laptop and other items not provided by the employer.
The employer will have to take into account: the norms of consumption of materials and work tools, including technical equipment, the norms of electricity consumption, the costs of telecommunication services.
The important thing is that the equivalent will not constitute income for the employee.
Do employers have to reimburse employees for the cost of, for example, water and office space they use in their accommodation?
The mandatory reimbursement of vehicle consumption costs only applies to the costs of electricity and telecommunication services necessary to carry out remote work.
It therefore does not cover the costs of water consumption or the use of internal space, unless the provisions on the obligation to reimburse these costs have not been included in the company’s internal legal acts.
Can a remote worker be subject to a sobriety check?
The possibility to check an employee’s sobriety came into force on 21 February 2023. This is an important change for companies, which gives the employer the right to conduct a sobriety test of an employee. Under similar conditions, an employer can check whether an employee is under the influence of other substances.
“Art. 22 § 1. If it is necessary to ensure the protection of life and health of employees or other persons or the protection of property, the employer may introduce a sobriety check for employees.”
It appears that teleworkers are not a group that qualifies for sobriety or substance abuse testing, such testing may be performed if it is necessary to ensure the life and health of employees or other persons or the protection of property.
As a general rule, telework is carried out by employees using ICT equipment and does not pose a high risk to health, life or property.
New types of leave in the Labour Code.
The purpose of the amendments to the labour law is to implement EU directives on transparent working conditions and the reconciliation of professional and family obligations. The changes concern so-called force majeure, care leave and parental leave.
Under the new regulations, an employee may extend parental leave by two months (thus extending it from 32 weeks to 41 weeks). Such additional leave is intended for fathers, so its non-use cannot be transferred to the mother. This opportunity is intended to encourage fathers to choose childcare services. The additional leave is paid at 70 per cent of the measurement basis.
“Art. 182. § 1. Employees-parents of a child have the right to parental leave to care for the child of up to:
1) 41 weeks – in the cases referred to in Article 180 § 1, point 1;
2) 43 weeks – in the cases referred to in Article 180 § 1 points 2-5.
§ 2 The leave of the length referred to in § 1 shall be granted jointly to both parents of the child.
According to the amendments to the Labour Code regarding care leave:
“Art. 173 . § 1. An employee shall be entitled to 5 days of care leave during a calendar year in order to provide personal care or support to a person who is a member of the family or resides in the same household and who requires care or support for serious medical reasons.
The said draft also provides for an additional 5 days of unpaid care leave to care for a family member (parent, child, spouse). The employer may consider a request in which the employee justifies the need for personal care of a family member.
The remaining two days or 16 hours of additional leave as required by law may be taken by the employee in case of force majeure or in the event of a family emergency (accident, illness, destruction of the house, etc.). This time off will be paid at 50%. pay due.
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