In response to numerous questions concerning the application of the labour law provisions that allow an employee to be assigned remote work in order to counteract COVID-19, the National Labour Inspectorate explains:
In what form should the employer assign remote work to an employee – orally or in writing?
The Act does not specify the form of an instruction to work remotely. Consequently, it should be assumed that such an instruction may be issued in any form, including orally. However, it would be in the interest of both parties to the employment relationship (the employee and the employer) to confirm that the instruction to work remotely has been given (e.g. a letter addressed to the employee or a business e-mail).
For how long may remote work be assigned?
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 counteracting COVID-19. At the same time, it should be noted that Article 3 of the Act will cease to apply 180 days after the date on which the Act entered into force. It therefore appears that the period for which an employer may instruct an employee to work remotely may not extend beyond the above-mentioned period.
May the originally specified period of remote work be shortened or extended?
The Act contains no restrictions in this respect; it should therefore be assumed that it is permissible both to shorten and to extend the period of remote work, for a fixed period justified by counteracting COVID-19.
May an employee challenge an instruction to work remotely?
An employee is obliged to follow the instructions of superiors that relate to 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.
Is a refusal to work remotely grounds for holding the employee liable (a disciplinary penalty)?
A refusal to carry out an 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. Pursuant to Article 108 § 1 of the Labour Code, the employer may apply a penalty of a warning or a reprimand for the employee's failure to comply with the established organisation and order in the work process, as well as with occupational health and safety regulations.
May 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 assigned. However, if the employee reports that it is not possible to work at their place of residence, the employer should designate another place for the employee to work remotely.
Must an instruction to work remotely include a justification?
The Act does not provide for an obligation to justify an instruction to work remotely. It does state, however, 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 the above-mentioned purpose.
Are there specific circumstances (e.g. cases of illness in the area or region where the employer has its registered office) that entitle the employer to use remote work? Or are the employer's own conviction and life experience sufficient?
Within the meaning of Article 2(2) of the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19,… “counteracting COVID-19” means all activities related to combating the infection, preventing its spread, prophylaxis and combating the effects of the disease. The grounds for instructing an employee to work remotely are therefore broad and, in practice, any employer may instruct employees to work remotely, if only for preventive reasons.
May the employer instruct that remote work be performed in a place other than the employee's home?
Pursuant to Article 3 of the Act, in order to counteract COVID-19 the employer may instruct an employee to perform, for a fixed period, the work specified in the employment contract outside the place where it is normally performed (remote work). This wording of the provision indicates that the employer may also assign remote work to be performed in a place other than the employee's home.
What are the employee's entitlements if the workplace is closed or remote work cannot be performed because of COVID-19?
Where an employer has to close its workplace or a part of it, or where it is not possible to instruct the employee to work remotely, Article 81 § 1 of the Labour Code will apply.
It follows from this provision that, for the time when work is not performed, an employee who was ready to perform it but was prevented from doing so for reasons attributable to the employer is entitled to remuneration:
– resulting from their personal pay grade, specified as an hourly or monthly rate (this applies to employees paid at a fixed hourly rate, e.g. PLN 20 per hour, or at 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 the above-mentioned remuneration component was not specified when the terms of remuneration were set – the employee is entitled to 60% of remuneration (this applies, among others, to employees who receive piece-rate or commission-based pay, i.e. remuneration defined as a rate per quantity of products made or as a specified % of revenue/income/profit).
In any case, however, this remuneration may not be lower than the minimum wage, which is set on the basis of separate regulations.
This is because the need to close a workplace in order to counteract COVID-19 should be regarded as a reason attributable to the employer – even though the employer is not at fault for it (just like a power cut in a city, including at the workplace, which makes work impossible, a flood that has inundated the workplace, etc.).
ZUS – Questions – Coronavirus, 12.03 (in Polish)
Declaration – additional care allowance (in Polish)
Source: National Labour Inspectorate; Social Insurance Institution (ZUS); Ministry of Labour, Family and Social Policy