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46 (141) 2020
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Managing human resources through the pandemic

Remote work: a benefit or a risk?

By Monika Krzyszkowska-Dąbrowska and Agnieszka Kornecka, Linklaters
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As a result of the Covid-19 pandemic, remote work has become widespread. Statutory measures made available to employers allow them to ask employees to work outside their usual workplace.

As a result of the Covid-19 pandemic, remote work has become widespread. Statutory measures made available to employers allow them to ask employees to work outside their usual workplace. Article 3 of the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating Covid-19, other infectious diseases and the resulting crisis, gives employers the possibility, in a period of this epidemic,epidemic threat and for three months after its revocation (in order to counteract the disease), of ordering employees to perform, for a determined period of time, their work under employment contract, outside of their permanent place of performance.

Accordingly, remote work can presently take the form of:  

•    statutorily defined temporary remote work in Covid-19 circumstances, or

•    telework as set out in the Polish labour code), or

•    customarily applied ’home office’ based on internal regulations (that is remote work which does not meet the definition of telework).

Currently, there is legislative work pending (still at an initial stage) aimed at introducing remote work to the labour code as a structured solution. The contemplated concept at the moment mirrors, to a large extent, the provisions governing telework, with several new notions. These have met with some dissatisfaction from business, which had expected greater flexibility in the application of remote work solutions for the future. It is subject to further revision and no final legal draft has yet been submitted to parliament. In any case, the government is promising a fast legislative path, acknowledging the expectation and the need of the market for the respective regulations, given the temporary character of Covid-19 remote work at present and the wide appreciation of this manner of work.

In essence, remote work during the epidemic, telework and home office bear certain similarities. However, the key benefit of Covid-19 remote work is the employer’s unilateral authority to demand this manner of work (and revoke it) and few formalities are imposed statutorily. Telework is a formalised legal construction, requiring the agreement of both parties to the employment relationship for its application and the introduction of formal regulations. ‘home office’ is an informal arrangement between the employer and employee designed by the employer. In the first and last case, remote work regulations are simply good practice.

Although remote work is to be applied during the epidemic for the purpose of counteracting Covid-19, the practical aspects of work organisation remain within the remit of the employer. The employer may demand remote working, in particular, depending on the epidemic situation, for a determined period for all employees or for a select group of employees, or introduce a hybrid system with employees rotating or even adjusting their work habits on a daily basis to the pandemic situation. Employees may also have to adjust to the needs of the business, regardless of the manner of work performance and regardless of the use of means of electronic communication throughout the remote working period. However, the statutory restrictions include a requirement for appropriate skills, technical capabilities and suitable premises on the side of the employee, as well as the type of work that allows for remote work. The necessary tools and materials necessary and logistics should be covered by the employer. Conversely, telework requires a more organised pattern of use as the key elements of its definition include regular work outside the work establishment with the use of means of electronic communication. There are also further formalities and requirements on the side of the employer to be complied with. Home office, which, admittedly, is currently not being exploited during the epidemic, usually assumes a certain pool of days (usually several) out-of-office work to be used by the employee in agreement with their superior in an irregular, ad hoc manner.

A common problem for all types of remote work is the inflexibility and conservative nature of Polish labour law. Unfortunately, despite setting the frames for organisation of remote work, the statutory rules do not adjust other provisions to the specificity of working outside the work establishment or to the limited control of the employer over the employee. The responsibility for compliance with the respective obligations mostly falls on the employer, regardless of the practical complications in their performance given the physical absence of employees from the employer’s premises and the impossibility of permanent control over the work of employees that concerns, such as working time, health and safety issues, accidents at work, and work organisation. The employer may sometimes not even be aware of the location from which the employee performs work (which is not advisable from the legal perspective and pertinent measures should be undertaken to know where the employee is). There are no exemptions or specific solutions that would bring the legal requirements in line with the reality of remote work. Few exceptions are envisaged, and only in the case of telework.

As a general rule, employees are obliged to respect the working time established in the workplace. When working remotely, the same working hours apply as they do in the workplace unless any specific regulations are expressly introduced (working time is not by definition at the employee’s disposal). An employer should keep a record of working time, especially overtime work, as well as define the ways of reporting commencement of (or readiness for) work, as well as the end of work on each working day. It is possible, for example, to ask the employee to fill in a paper attendance list and send it every week as a scanned document to the supervisor, the original of which is sent by post or delivered when the employee eventually visits the workplace, or records in special (properly prepared and secured) electronic systems for recording working time, or sends an email or text message to the supervisor at the time work is both commenced and finished. It is good practice to explicitly request in writing that employees obtain their superior’s consent prior to commencing any overtime work. As for health and safety issues, a possible solution is to cooperate with a health and safety specialist to determine what rules can be implemented during remote work and introduce procedures for the cooperation of the employees in this area, adapting solutions to individual situations. A tricky issue and a grey area remains employee remuneration in exchange for the use of private equipment and utilities for the purpose of performing remote work. There may be certain arguments in favour of compensating employees; however, the law governing remote work during the Covid-19 crisis does not require that expressly.

It is a good idea for employers to introduce internal rules for remote work during the epidemic to substantiate for the deficiencies in the statutory regulations, and to organise work, as well as regulate the most problematic items, in order to avoid controversial disputes. These should cover at least the most crucial issues, including data protection and confidentiality, to protect the businesses of the employers and reduce the risk of mistakes and claims from employees.

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