Changes to the Labour Code regarding remote work

The changes to the Labour Code regarding remote work that are coming into force are not a complete revolution. The pandemic forced all of us to adapt to working in isolation – life itself carried out a reform that only had to be sanctioned.

A few changes in remote work

The legislator has resorted to solutions already known to the labour law:

deciding on the implementation of remote work rules in a manner known to employers (regulations, generally agreed with employee representation, or individual agreements),
allowing for relatively flexible implementation/resignation from remote or hybrid work (from the beginning of employment or during it).

What do you need to know when introducing remote work in your company?

However, there are a few things to keep in mind as you prepare to transform your company’s work policies.

First of all, remote work does not have to be work at a computer or with the use of a phone (although it probably usually will). However, in any case, the costs of work tools are borne by the employer. Therefore, it is crucial to determine what work – if it requires something more than a computer and a phone – can realistically be done at home. Remote work will dominate, as it seems, the sphere of white-collar work, although theoretically physical work can also be performed remotely.

Secondly, remote work must be safe for all concerned. Hence, it is necessary not only to develop rules for controlling employees or training them in the area of occupational health and safety. A very important aspect is also the confidentiality of legally protected information, including personal data. You can probably count on quite serious (and necessary) studies with quite funny titles in the future, such as “Children and husband as risk factors in the protection of personal data”.

Thirdly, remote work will never be accepted as a binding and once and for all. The rule, if it was introduced during employment, is that remote work is revocable by each party. A certain exception is on the part of the employer, where this freedom is limited when employing particularly privileged employees indicated in the Act (in principle, a kind of privilege applies to situations related to parenthood). Therefore, it is worth thinking not only about the plan for transferring employees to remote work, but also a plan to get out of a situation where working from home overwhelms someone. Hence, the optimistic liquidation of office space should be replaced with a well-thought-out liquidation.

In addition, the information normally provided to employees upon taking up employment (Article 29 § 1 of the Labour Code) will be expanded to include certain information related to remote work. Therefore, it is worth making sure that the forms used in HR are updated.

Does the law work correctly?

The legislator amends the labour law, changes, improves, but still omits the resolution of certain fundamental problems. One of them is the problem of the form of legal action in labour law. The slavish use of the concept of actions performed “in writing” (instead of the written form), as well as the addition of “paper form” (which is not known what it actually is) or “electronic form” (which is not known to the Civil Code, after all, the “electronic form”) only deepens the chaos.

And subsequent changes are supposed to simplify the lives of employers and employees. This is probably why employee requests related to remote work, for which the regulations require a written form, can be submitted “in paper or electronic form”. It was supposed to be simpler, but it turned out as usual – lawyers still have something to think about.

Definition of remote work – remote work and amendments to the Labour Code

The latest regulations on remote work specify exactly what work from home should be and what the rules for remote work are. It consists strictly in performing the activity completely or partially in the place indicated by the employee. It is also important that the place of remote work must be agreed with the employer each time, and everything should be done using means of direct communication.

The legislator indicates that the key to this definition is that the place of remote work, occasional or permanent, is agreed with the employer. In a situation where the place of operation is indicated by the employer, then we do not talk about remote work.

To better understand the definition of remote work, I will use an example to illustrate this:

Mr. Patryk works at the company’s headquarters 2 days a week. However, I work remotely at my place of residence for three days. The employee himself indicated the apartment, so we are talking about the place of remote work, which was agreed between Mr. Patryk and the employer.

Importantly, there is one more important aspect associated with remote work. Neither the employer nor the employee can impose on the other party the place where remote work will be performed.

Employee’s request for remote work – how to move to remote work

An employee may submit a request to perform remote work, and the employer must take this into account in the case of employees:

pregnant;
Parents:
raising a child until the child reaches the age of 4;
a child with a certificate of severe and irreversible disability or an incurable life-threatening illness that occurred in the prenatal period of the child’s development or during childbirth;
a child with a disability certificate or a certificate of moderate or severe disability;
a child who has an opinion on the need for early development support, a certificate recommending special education or rehabilitation-and-education classes;
caring for another family member or a person living in the same household who have a disability certificate or a certificate of severe disability.

Of course, the employer may refuse, but only if this type of work cannot be performed due to the type of work performed by the employee or the organization of work in the company. The employer must then inform the employee in writing in paper or electronic form within 7 working days of submitting the request.

Review of the new provisions on remote work in the Labour Code

New regulations on remote work have been introduced to the Labour Code in Poland in order to adapt the law to the reality in which work outside the company’s headquarters is becoming an integral part of full-time work.

Here are the key changes:

The previously mentioned definition of remote work has been changed, which has been formally defined as work performed wholly or partially outside the employer’s premises, including means of electronic communication. It is important that it cannot be performed in the employee’s current workplace.
Remote work can be taken into account when concluding an employment contract or during employment in the workplace. Remote work may be introduced by the employer unilaterally when there is a state of epidemic threat or during the state of emergency. In a state of disaster, when it is impossible to ensure safe and hygienic working conditions, the employer may send the employee to work remotely.
The employer’s obligations have also changed, as they must provide the employee with access to appropriate work tools. He is also obliged to cover the costs of electricity and internet.
The employer has the right to control the quality of remote work. Of course, this is to be done with respect for the privacy of the employee’s place of residence. The inspection may include an inspection of the workplace, but in this case the appropriate consent is needed.
An employer who allows remote work isresponsible for ensuring safe working conditions. The employee, on the other hand, is obliged to comply with the health and safety rules.
The regulations introduce the possibility of occasional remote work for 24 days in a calendar year. In such a situation, the job does not require formal arrangements with the boss.

Remote work and the employer’s new obligations – what is changing?

The introduction of the new regulations imposes a number of additional obligations on the employer, which are aimed at creating appropriate conditions for an employee performing remote work so that he or she can fully perform his or her duties outside the company’s headquarters.

The employer is obliged to provide materials and work tools. The employee must have access to all the tools necessary to perform the job. It can be a phone or a computer, but also access to telecommunications services necessary to perform duties. Especially when it comes to outsourcing IT employees.
In addition, it is the employer who must cover the costs of electricity, which include internet fees, electricity or equipment maintenance. However, it should be remembered that there are standards for electricity consumption. The maximum cost of the lump sum for electricity in 2023 could be PLN 53.56 per month (assuming the maximum price for 1 kW of PLN 0.693).
Health and safety requirements play a very important role, which in practice means that the employee will have to familiarize himself with the occupational risk assessment prepared by the employer. Your employer must also provide any instructions relating to health and safety at work. For the legislator, it is important that the workplace is completely safe and that the employee has access to hygienic remote work.
Another important thing is the provision on the protection of personal data. Remote work is associated with the need to protect such data, which means that the employer has another obligation. This time in the field of ensuring information security.

Costs of remote work: What does the employer cover under the new regulations?

According to the latest regulations, the employer is obliged to cover many fixed costs of an employee performing remote work. Of course, these are mainly things from the list of the so-called necessary to perform work.

The employee must have easier access to materials and work tools, including technical devices necessary to perform remote work.
In the case of remote work, it is the employer who provides installation, service and maintenance of the equipment.
The regulations require the employer to cover the costs of remote work, and this is electricity and access to telecommunications services.
The employer is obliged to cover the costs directly related to the work performed. Details of such phrases must be included in the agreement concluded with the employee, the remote work order or the remote work regulations within the form. Such an agreement may be reached, for example, when permanent recruitment takes place.

Termination of a remote work contract – amendments to the Labour Code

The employer and the employee can agree that the work will only be performed for a certain period of time. Termination of remote work may occur in a situation where each party submits an appropriate request to return to stationary work. Therefore, the employee and the employer decide whether to terminate remote work.