The introduction of remote work rules into the Polish Labour Code formally regulates the performance of work outside the employer's office.
Voices of dissatisfaction with excessive workplace formalities and obligations are increasingly heard, and the main motivator for employers to introduce remote working is pressure from employees, who are now treating remote work (at least in a hybrid model) as an essential condition.
Under the new rules in the Labour Code, an employee can designate any place to perform remote work, subject to the approval of the employer. Any change in the place of work similarly requires the employer's approval. The employer may also specify where the work may be performed, for example at the employee's place of residence or in a given territory (e.g. Poland or the EU).
During the pandemic, converting to remote work was simple and quick. There were expectations that the new regulations would have similarly simplified rules, but those expectations were not met. Instead, the newly introduced regulation significantly formalizes the process of agreeing on remote work. The employer must issue regulations specifying the rules of remote work and provide the employee with a specified package of information on workplace health and safety. In turn, the employee must provide a number of statements, and the employee is responsible for organizing the remote workstation.
The employer must also determine what costs will be reimbursed to the employee in connection with the remote work. At a minimum, the employer must provide reimbursement for electricity (to the extent it is used for the work tools) and telecommunications services such as internet service.
Certain categories of employees have special rights for remote working. These include pregnant employees and employees caring for a child up to the age of four years old. In those cases, the employer may refuse a request to work remotely only if it is incompatible with the type or organisation of work. When the work is office work, making this showing can be very difficult in practice.
When the work is performed at the employer's office, ensuring safe and healthy working conditions is one of the employer's primary duties. It consists of, among other things:
- organisation of the workplace in accordance with health and safety regulations and rules;
- ensuring the safe and hygienic condition of the premises and technical equipment;
- providing the means necessary for emergency first aid, firefighting and evacuation, and ensuring communication with external services specialized in those areas;
- providing adequate hygiene and sanitation facilities and supplying necessary personal hygiene products; and
- providing appropriate meals and drinks to employees working in particularly arduous conditions.
In the case of remote work, ensuring safe and hygienic working conditions is largely the employee's responsibility, since remote work is performed outside the employer's OHS supervision. The employer is only be required to exercise due diligence and provide the employee with OHS guidance and instructions. The information provided to the employee must include, in particular, the principles and methods of proper organisation of the remote workstation, taking into account the requirements of ergonomics and the rules of conduct in emergency situations that pose a threat to human life or health.
However, it can be difficult to enforce the above recommendations, because the employer is not in a position to monitor or prohibit on an ongoing basis the performance of work in a manner contrary to OHS principles. An example would be performing work with proper ergonomics. The employer can give guidelines explaining what the correct posture is when performing work in front of a monitor, but only the cooperation of the employee will ensure that he or she does not work with a laptop in a non-ergonomic manner.
This is why it is so important not only to provide employees with the relevant instructions and guidelines, but also to provide training and constant communication reminding them that OHS in the workplace is extremely important for their own wellbeing, as well as their family members. Employers can also conduct inspections for compliance with OHS requirements. If there are violations, the employer can revoke permission for remote work. Despite the exemption of employers from some of their OHS obligations in the context of remote work, they still remain the primary entity responsible for safe and hygienic working conditions for their employees.
Similar concerns arise with regard to post-accident investigations. The regulations allow the employer to inspect the accident scene at a time agreed upon by either the employee (or a member of the employee's household if the employee is unable to agree on a date due to health reasons). The investigation, however, will be far more problematic than in the case of an incident occurring at the workplace. It will be difficult for the employer to determine whether, for example, an injury due to boiling water occurred while the employee was preparing a drink for personal consumption during a break at work or instead occurred while preparing a meal for an evening party for guests.
In the context of OHS, remote work poses a major challenge for the employer. The responsibility associated with it dictates that all obligations be taken seriously, but there are also exceptions transferring some OHS responsibilities to the employee. Hasty decisions or a cursory treatment of this matter can have major negative impacts to the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.