The extraordinary circumstances arising from the threat of the COVID-19 virus do not release employers from their duty to protect the health and lives of their employees – especially when they work in positions involving factors that are harmful to health, arduous or dangerous.
We have prepared a practical guide for employees and business owners on occupational health and safety in the face of the coronavirus, in which we answer the most frequently asked questions.
How work should be organised today
In the area of occupational health and safety, the employer is obliged to ensure, as far as possible, that the COVID-19 virus does not spread in the workplace. Above all, this means organising work in a way that limits personal contact between employees, e.g. by cancelling meetings or communicating by means of remote communication tools. Wherever possible, employees should be instructed to work remotely.
In view of the virus threat, is the employer responsible for providing employees with disinfectants?
It is important both to provide employees with hand disinfectants and to pay particular attention to hygiene, i.e. the cleanliness of workstations and of places where employees often spend time, such as canteens and sanitary facilities.
Employees who work in direct contact with customers may be particularly exposed. Such employees should be properly informed of the risks and provided with personal protective equipment, if the risk assessment carried out by the employer shows that it is necessary for the position in question.
Does the obligation to inform employees about occupational risk cover the threat of the COVID-19 virus?
The employer informs employees about the occupational risk associated with their work and about the rules of protection against hazards. The flow of information between the employer and employees is therefore particularly important, so that employees can be given up-to-date guidance on how to behave in the workplace in the changed circumstances caused by the threat of the COVID-19 virus.
Is the employer obliged to prepare instructions on how to work when there is a risk of coronavirus?
It is recommended that the employer prepare appropriate instructions – guidelines, recommendations – addressed to employees, telling them how to work when there is a risk of the COVID-19 virus (concerning, among other things, contact with colleagues and customers, and personal hygiene).
Can employees’ body temperature be measured?
The employer should obtain the consent of the employee concerned to measure their body temperature. The employee, for their part, is obliged to cooperate with the employer in carrying out tasks related to protecting the life and health of employees.
Such a preventive measure taken by the employer may be significant in counteracting COVID-19. However, the law does not specify a temperature level that would make it possible to conclude that an employee is ill or infected with the COVID-19 virus.
Do the extraordinary circumstances arising from the threat of the COVID-19 virus release employees from the obligation to comply with the guidelines, instructions and orders drawn up by the employer to counteract the threat of this virus?
When there is a risk of the COVID-19 virus, an employee is obliged to perform their work in compliance with occupational health and safety regulations and rules, and to follow the orders and guidance issued in this respect by the employer and superiors. In addition, the employee is obliged to cooperate with the employer and superiors in fulfilling occupational health and safety obligations.
Remote work, leave, pay – frequently asked questions
Can an employer currently order its employees to work remotely?
Yes, in order to counteract the spread of the coronavirus, an employer may order its employees to work remotely. This follows from the provisions of the so-called special act (specustawa), i.e. the special act on specific solutions for combating the coronavirus epidemic.
Remote work is not the same as teleworking
Remote work is a broader concept than teleworking. Remote work means performing work outside the place where it is normally performed, on the employer’s instruction – within the meaning of the special act – in order to counteract COVID-19.
So what is the difference between remote work and teleworking?
Teleworking means performing work regularly outside the employer’s premises, using means of electronic communication. A teleworker is therefore an employee who works under these conditions and delivers the results of their work to the employer, in particular by means of electronic communication. This may be, for example, work done on a computer and sent to the employer by e-mail.
Remote work, on the other hand, may also mean that an employee works, for example, at home without using means of electronic communication (a computer, the internet). For example, the employee analyses documents at home, writes an opinion by hand, etc., and then hands over the result of their work to the employer in a manner agreed with the employer.
Can an employee request remote work?
The decision to order remote work rests solely with the employer. The employee may of course make a request, but the request is in no way binding on the employer.
Will pay change if remote work is ordered?
No, the employee’s pay will not change. Remote work is simply a change in the place where work is performed.
In what form should the employer assign remote work to an employee – is a written instruction required?
The Act does not specify the form of an instruction to work remotely – this means that the instruction may be given in any form, including orally. However, it would be in the interest of both parties, i.e. the employer and the employee, to confirm this fact, e.g. in a letter addressed to the employee or in a work e-mail.
How is remote work documented?
This is a matter to be agreed between the employer and the employee. An instruction to work remotely does not have to be issued in writing; like any other work-related instruction, it may be given orally, by e-mail or by text message. The employer may confirm the instruction in writing.
For how long can remote work be ordered? Can this period change?
The Act does not specify a maximum period of remote work. The decision in this respect rests with the employer – it may be a fixed period, provided that it is justified by the need to counteract COVID-19.
Importantly, Article 3 of the Act ceases to have effect 180 days after the date on which the Act enters into force. It therefore appears that the period for which an employer may instruct an employee to work remotely cannot be longer. However, the originally specified period may be either shortened or extended.
Can an employee challenge an instruction to work remotely?
An employee is obliged to follow superiors’ instructions concerning work, provided that they are not contrary to the law or the employment contract (Article 100 § 1 of the Labour Code). This also applies to an instruction to work remotely.
Refusal to carry out the employer’s instruction, provided that it is not contrary to the law or the employment contract, may result in a disciplinary penalty being imposed on the employee. The employer may apply the penalty of a warning or a reprimand for an employee’s failure to observe the established organisation and order in the work process, as well as occupational health and safety regulations (Article 108 § 1 of the Labour Code).
Can remote work be assigned regardless of housing and family circumstances? What if, in the employee’s opinion, work cannot be performed at their place of residence because of the conditions and relations at home?
The provisions of the Act do not refer to the employee’s housing or family circumstances when remote work is ordered. However, if the employee reports that they are unable to work at their place of residence, the employer should designate another place for the employee to perform remote work.
Must an instruction to work remotely include a justification?
The Act does not provide for such an obligation; it does, however, specify that an employer may instruct an employee to work remotely only in order to counteract COVID-19. When instructing an employee to work remotely, the employer should therefore act for that purpose.
Are there specific circumstances (e.g. cases of illness in the area or region where the employer is based) that entitle the employer to use remote work? Or are the employer’s own conviction and life experience sufficient?
According to the Act, “counteracting COVID-19” means all activities serving to prevent the spread of the virus, prophylaxis or combating the effects of the disease. This means that the grounds for instructing an employee to work remotely are broad and, in practice, any employer may instruct employees to work remotely, if only for preventive reasons.
Can an employer order remote work to be performed somewhere other than the employee’s home?
Yes, it follows from the Act that the employer may assign remote work to be performed outside the place where it is normally performed, and therefore also in a place other than the employee’s home.
During the coronavirus threat, can an employer send employees on outstanding annual leave?
In the case of outstanding annual leave that has not been used by 30 September of the following calendar year, the employer has the right to send the employee on that leave – even without the employee’s consent – e.g. during the coronavirus threat. This is the position taken by the National Labour Inspectorate.
What if the employer has to close its workplace (or part of it)? Is the employee then entitled to pay?
In such a situation, or where it is not possible to instruct the employee to work remotely, for the time during which work is not performed – if the employee was ready to perform it but was prevented from doing so for reasons attributable to the employer – the employee is entitled to remuneration:
- resulting from their personal pay grade, set as an hourly or monthly rate (this applies to employees paid a fixed hourly rate, e.g. PLN 20 per hour, or a fixed monthly rate, e.g. PLN 4,000 per month – these employees will receive these rates of pay during the stoppage as well)
- if this component of remuneration was not specified when the terms of pay were set – the employee is entitled to 60 per cent of their remuneration (this applies, among others, to employees who receive piece-rate or commission-based pay, i.e. remuneration defined as a rate for the quantity of products made or a specified percentage of revenue/income/profit)
In any other case, however, this remuneration may not be lower than the minimum wage. This is because it must be considered that the need to close the workplace in order to counteract COVID-19 will be a reason attributable to the employer – even though it will be a reason for which the employer is not at fault.