New regulations on preventing, counteracting and combating COVID-19
On 4 March, the first case in Poland of the disease caused by the SARS-CoV-2 virus was officially confirmed. As early as 8 March, the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and the crisis situations caused by them (Journal of Laws of 2020, item 374) entered into force. Its provisions are intended to make it easier to fight the spread of the coronavirus epidemic.
Some of the new regulations directly concern entrepreneurs. They cover both general matters, e.g. in the area of labour law, and provisions addressed only to selected sectors of the economy, such as the tourism industry.
Below we have gathered the most important of them.
Remote working
In order to counteract COVID-19, an employer may instruct an employee to perform work, for a specified period, outside the usual place of work – most often at home. The new provision thus introduces the category of “remote working”, not previously regulated in the Labour Code (unlike teleworking, which is performed at a distance entirely, i.e. all the time, using means of electronic communication). Remote working, or the so-called home office, is now not only an option that an employee may use voluntarily (on their own initiative) with the employer's consent, but may also be an obligation if the employer decides to apply this form of work in connection with the COVID-19 threat.
Additional care allowance
Where it is necessary to personally care for a child up to the age of 8 because a crèche, children's club, kindergarten or school has been closed due to the coronavirus threat, parents are entitled to an additional care allowance for a period of up to 14 days, regardless of the number of children requiring care. The allowance is available only to parents or legal guardians who are covered by sickness insurance (e.g. employees, contractors under a contract of mandate, persons conducting non-agricultural business activity). The additional allowance is not counted towards the 60-day limit of care allowance to which an employee is entitled in a calendar year. It is granted under the procedure and on the terms set out in the Act of 25 June 1999 on cash benefits from social insurance in the event of sickness and maternity (Journal of Laws of 2019, items 645 and 1590).
Exemption from the application of public procurement regulations and construction law
If there is a likelihood of COVID-19 spreading rapidly and uncontrollably, or if the protection of public health so requires, goods or services necessary to counteract COVID-19 may be purchased by the public sector without applying the provisions of the Public Procurement Law, i.e. without having to follow the rules and procedures set out therein.
In turn, design and construction works, including a change in the use of buildings in connection with counteracting COVID-19, may be carried out without applying the provisions of the following acts: the Construction Law, the Act on Spatial Planning and Development and the Act on the Protection and Care of Historical Monuments.
Power of public authorities to issue instructions to entrepreneurs
The Prime Minister, at the request of a voivode (provincial governor) and after informing the Minister of Development, may issue instructions to entrepreneurs, in connection with counteracting COVID-19, by way of an administrative decision. Such instructions do not require a statement of reasons and are to be carried out immediately – upon delivery or announcement. They may also be issued orally, by telephone and by means of electronic communication (e.g. e-mail). The competent voivode will sign a contract with the entrepreneur who receives an instruction for the performance of the tasks covered by it, and the costs will be financed from the state budget. However, preparations for the performance of the tasks indicated in the contract (e.g. planning work) will have to be financed from the entrepreneur's own funds.
In addition, the Chief Sanitary Inspector (GIS) or a state voivodeship sanitary inspector acting under his authority may issue decisions, recommendations and guidelines to legal persons, natural persons and organisational units without legal personality, in particular to entities carrying out medical activity and to employers. In a decision, the GIS may order specific measures to be taken to prevent the spread of the disease, or impose an obligation to carry out an inspection. Recommendations and guidelines, in turn, will set out how to proceed when carrying out tasks. Decisions of the Chief Sanitary Inspector are immediately enforceable upon their delivery or announcement and do not require a statement of reasons. In urgent cases they may be issued orally and then – without delay – confirmed in writing.
If an entrepreneur wishes to appeal against a GIS decision, they may lodge an appeal with the Minister of Health within 2 working days of the date on which the decision was delivered or a decision issued orally was confirmed in writing. The appeal will be considered within 5 working days.
Special regulations concerning the pharmaceutical and healthcare sector
On the basis of information provided by the Chief Pharmaceutical Inspector, the Minister of Health will set, by way of an announcement, the maximum prices of specific medicines, medical devices or foodstuffs for particular nutritional uses that may be used in connection with counteracting COVID-19.
The GIS or a state voivodeship sanitary inspector acting under his authority may, by way of an administrative decision, impose on pharmaceutical wholesalers an obligation to distribute medicinal products, foodstuffs for particular nutritional uses or medical devices, and on manufacturers, distributors or importers – an obligation to distribute personal protective equipment.
The Minister of Health may publish a list of medicinal products, foodstuffs for particular nutritional uses and medical devices that a pharmaceutical wholesaler may sell only to pharmacies, pharmacy outlets, other pharmaceutical wholesalers and healthcare establishments or healthcare entities operating in the territory of Poland. Manufacturers or importers of products included in such a list will be allowed to sell them only to pharmaceutical wholesalers. If they fail to comply with this obligation, they face a fine of between PLN 10,000 and PLN 5,000,000.
Furthermore, the Minister of Health may, by regulation, impose an obligation to monitor and report to the Integrated System for Monitoring Trade in Medicinal Products the medicinal products, foodstuffs for particular nutritional uses and medical devices that are on the market. Where such an obligation is imposed, entities not previously connected to the integrated system must connect to it within 24 hours and begin transmitting information.
The Minister of Health may also limit the quantity of a medicinal product, medical device or foodstuff for particular nutritional uses per patient in the event of:
- a risk that a medicinal product, foodstuff for particular nutritional uses or medical device will be unavailable in the territory of Poland,
- a state of epidemic threat, a state of epidemic, or a risk of the spread of an infection or infectious disease that may pose a threat to public health.
In the event of a sudden threat to a patient's health in connection with COVID-19, a pharmacist holding the right to practise may issue a pharmaceutical prescription.
The Prime Minister, at the request of the Minister of Health, may impose on a healthcare entity that is:
- a capital company in which the State Treasury is the sole or majority shareholder, or
- an independent public or non-public healthcare institution, or
- a state budgetary unit
an obligation to perform a specific task in connection with counteracting COVID-19.
In particular, this may involve handing over medicinal products, medical devices, foodstuffs for particular nutritional uses and medical apparatus
and equipment, in order to ensure that healthcare services are provided at another healthcare entity.
Where such an obligation is imposed, the public authorities provide funds to cover the expenses associated with its performance. If a healthcare entity suffers damage while performing the task imposed on it, the Minister of Health is obliged to make good that damage.
Solutions dedicated to the tourism, hotel and transport industries
If, in connection with the threat of the COVID-19 epidemic:
- a traveller withdraws from the contract (they do not have to pay for withdrawing and retain the right to demand a refund of the payments made, but without additional damages or compensation), or
- a tour operator terminates a package travel contract and at the same time fully refunds the payments made by the traveller for the package, but without additional damages or compensation
– then the tourism entrepreneur will be entitled to a refund of the contributions paid to the Tourist Guarantee Fund.
The tourism entrepreneur must apply for the refund within 60 days of the date of withdrawal from the contract or its termination. The application must state the amount to be refunded and be accompanied by:
- documents confirming the withdrawal from the contract or its termination,
- a statement by the tour operator concerning the dates on which the withdrawal or termination became effective,
- a correction of the declaration submitted, together with a list of the contracts giving rise to the contributions to be refunded.
Facilities providing hotel services without prior entry in the relevant register kept by voivodeship marshals or – in the case of campsites – by commune heads, mayors or city presidents are deemed not to meet the sanitary requirements. This means that hotel services may not be provided in such facilities.
Entities that manage airports and railway stations, as well as air, rail and road carriers, have been released under the Act from liability for damage caused in connection with the actions of public authorities aimed at counteracting COVID-19, and in particular for the inability to provide carriage.
The new solutions introduced by the Act concerning remote working, the additional care allowance, exemption from the application of the Public Procurement Law and the Construction Law, and the power of public authorities to issue instructions to entrepreneurs will apply for 180 days from the date of its entry into force.
At the same time, work is under way on a draft special act that will introduce a protective package for entrepreneurs affected by the negative effects of the epidemic, including relief in respect of public-law liabilities, such as easier payment of taxes and social insurance (ZUS) contributions, as well as instruments to improve companies' financial liquidity (guarantee support, loan subsidies) and to protect the labour market (including solutions for companies forced into downtime).
Prepared on the basis of information published on the biznes.gov.pl website and the website of the Ministry of Development (www.gov.pl/web/rozwoj) by the Enterprise Support Department of PARP, Enterprise Europe Network.