By Marta Michalik, HR and payroll and implementation expert, KR Group
Definition of remote work
New provisions of the Polish Labour Code governing remote work came into force on 7 April 2023. Remote work is defined by the Labour Code as work consisting of performance of the employee’s duties wholly or partly at the employee’s place of residence, agreed in each instance by the employee and the employer, using means of communication at a distance.
Remote work is defined by the Labour Code as work consisting of performance of the employee’s duties wholly or partly at the employee’s place of residence, agreed in each instance by the employee and the employer, using means of communication at a distance. The employee, when signing the contract, determines the place where they will be working work remotely – for example, from home, stating their address. Thus, the employer assumes that by doing remote work, the employee is at that location. If, however, the employee decides to work from another place – they must notify their employer via email. Different companies will have different formats for this email.
- The place where remote work is performed must be agreed in each case with the employer.
- The parties must agree on conducting remote work in written or electronic form.
Documents governing the possibility of performing remote work
The decision to perform remote work may be taken:
- At the time of concluding the employment contract, or
- During the course of employment.
Who can request remote work?
A change from stationary work to remote work may be made at the initiative of the employer or the employee. This possibility exists both upon conclusion of the employment contract and during the course of employment.
Remote work at the employer’s instruction:
The employer can assign remote work in the following instances:
- When a state of emergency, epidemic, or epidemic threat is in effect and for up to three months after it is called off
- When due to force majeure, it is temporarily impossible for the employer to ensure safe and hygienic working conditions at the employee’s prior working location.
Important! The employee’s declaration that they have the proper space and technical conditions to perform remote work must be submitted immediately prior to issuance of the instruction.
Employee’s request for remote work:
An employer must grant a request for remote work submitted by:
- A pregnant employee
- An employee raising a child up to the age of four
- An employee caring for an immediate family member or other person sharing their household, certified as disabled, or as moderately or significantly disabled
- An employee who is the parent of a child certified as disabled or as moderately or significantly disabled, under the regulations on professional and social rehabilitation and employment of disabled persons
- An employee who is the parent of a child found to be in need of early developmental assistance, or certified as requiring special education or needing educational rehabilitation instruction
- An employee who is the parent of a child holding a certification referred to in Art. 4 (3) of the “Pro-life” Act on Support for Pregnant Women and Families of 4 November 2016, i.e. serious and irreversible retardation or untreatable life-threatening illness which arose during the prenatal period or during birth, also if the child is age 18 or over.
Important! The employer’s refusal to allow remote work must be justified in the situation, where remote work is not possible for reasons of work organisation or the type of work performed by the employee. The employer must notify the employee of the reason for refusal to grant the request in writing or electronically within seven days after the employee submits the request.
Request to cease remote work and restore the prior conditions
If remote work was agreed during the course of the employment relationship, either party may submit a binding request, in paper or electronically, to return to stationary work.
The parties will agree on the date for restoring the prior working conditions, but no longer than 30 days after receipt of the request. If the parties cannot agree on the date, the prior working conditions will be restored 30 days after receipt of the request.
The employer cannot make a binding request to cease remote work and restore the prior working conditions in the case of the following employees performing remote work at their own request:
- Parents of children up to age four
- Pregnant employees
- An employee caring for an immediate family member or other person sharing their household, certified as disabled or as significantly disabled.
However, even in these cases, remote work can be ended if work can no longer be performed remotely due to the organisation of the work or the type of work performed by the employee.
Rules for remote work (agreement or remote work policy)
Under Labour Code Art. 67 (20) the employer should set forth the rules for remote work in the following documents:
- In an agreement between the employer and the workplace trade union (or unions)
- In a policy established following consultations with employee representatives
- In the employer’s instructions or the agreement between the employer and the employee
Employer’s duties related to remote work
Under Labour Code Art. 67 (20)0§6, the rules for remote work set forth in the agreement or policy should address the following issues:
- The group or groups of employees who may be subject to remote work
- Rules for coverage by the employer of the costs of performing remote work
- Rules for establishing the cash equivalent or lump sum for use of the employee’s own equipment
- Rules for reaching agreement between the employer and the employee performing remote work, including the manner of confirming the employee’s presence at his or her workstation
- Rules for occupational health and safety inspections – the equipment entrusted to the employee needed for performing remote work must comply with health and safety requirements
- Rules for installation, inventory, maintenance, software updates, and servicing of working tools entrusted to the employee, including technical devices
- Rules for monitoring performance of work by remote workers
- Procedures for protection of personal data.
Additional duties of the employer related to remote work
Under Labour Code Art. 67 (24), the employer must:
- Provide the employee working materials and tools, including technical devices, needed to perform remote work
- Cover the costs of installation, servicing, operation and maintenance of working tools, including technical devices, needed to perform remote work, costs of electricity, and costs of necessary access to telecommunications connections
- Cover other costs directly connected with performance of remote work, if reimbursement of such costs was specified in the agreement with the trade union, the workplace policy, the instruction to the employee, or the agreement with the employee
- Provide the employee the training and technical assistance needed to perform remote work.
In the case of remote work, the following will also be required on the part of the employer:
- Specification of the procedure for protecting personal data provided to an employee performing remote work, and any needed instruction and training in this respect. In turn, the employee will have to confirm (on paper or electronically) that he or she has reviewed these procedures and will comply with them. The procedure must be communicated and enforced.
- Providing information necessary to reach agreement via telecommunications or other manner agreed with the employer.
- Equal treatment (non-discrimination) of employees performing remote work
- Enabling employees performing remote work, under the rules adopted for employees in general, for being present at the employer’s workplace site, contacting other employees, and use of the employer’s premises and equipment, workplace social facilities, and social activities.
Content and manner of notice of employment conditions in the case of remote work
If remote work is performed on the basis of agreement upon conclusion of the employment contract, the written notice of employment conditions referred to in Labour Code Art. 29 §3 should also specify the organisational unit to which the employee’s workstation is assigned and indicate the persons responsible for cooperation with the employee and authorised to conduct an inspection at the site where remote work is performed.
If remote work is performed on the basis of agreement concluded during the course of employment or based on the employer’s instruction, the employer will have to provide the aforementioned notice to the employee, in paper or electronic form, no later than the date when the employee begins performing remote work.
Rules for establishing cash equivalent or lump sum for use of the employee’s own equipment
If employees use their own equipment, the employer is required to pay them a cash equivalent.
The regulations do not set the amount of the equivalent, but indicate that in determining it, the following should be considered: the standards for consumption of materials and use of working tools, including technical devices, documentation of their market prices, and quantities of materials used for the employer’s needs and market prices of such materials, standards for consumption of electricity, and costs of telecommunications services.
- The general rules for performance of remote work, including cash equivalent or lump sum for use of the employee’s own equipment, should be set forth in the agreement between the employer and the employee.
- Materials and working tools provided by the employer, including technical devices, coverage of costs connected with the employee’s performance of remote work, and payment of a cash equivalent or lump sum, will not constitute income within the meaning of the Personal Income Tax Act of 26 July 1991, nor will they be subject to social insurance contributions.
Occupational health and safety regulations and inspection of employees performing remote work
The employer will not be obligated to organise the remote workstation in compliance with occupational health and safety rules and regulations, or to exercise care for the state of the premises and technical equipment. The employer can conduct initial health and safety training online, as well as periodic follow-up training.
Before being admitted to perform remote work, the employee must sign a statement prepared by the employer (in paper or electronic form) concerning occupational health and safety rules, as well as a declaration that the remote workstation at the place indicated by the employee and agreed with the employer ensures safe and hygienic working conditions.
This declaration must contain the employee’s undertaking to comply with occupational health and safety rules.
Under Labour Code Art. 67 (28), the employer has a right to inspect the employee’s performance of remote work, occupational health and safety matters, and compliance with rules for security and protection of information, including data protection procedures, under the rules set forth in the agreement between the employer and the trade union or representative organisation, the working policy, the employer’s instructions to the employee, or the agreement between employer and employee.
Inspections are to be conducted in agreement with the employee, at the remote work site, during the employee’s working hours. The employer should adjust the method of conducting the inspection to suit the place where remote work is performed and the type of work. Inspection activities must not infringe the privacy of the remote worker or other persons, or hinder the intended use of the household space.
Remote work cannot be ordered or agreed in the case of:
- Especially hazardous work
- Work that would lead to exceeding the permissible standards for physical factors specified for residential premises
- Work with chemical agents creating a danger referred to in the occupational health and safety regulations related to the presence of chemical agents in the workplace
- Work involving the use or release of harmful biological agents, radioactive substances, or other substances or mixtures emitting noxious odours, as well as work creating dust or excessive dirt.
On the issue of occupational risk, the employer may prepare a universal assessment of occupational risk for specific groups of remote workstations. Then, before being admitted to perform remote work, the employee must confirm in writing or electronically that he or she has reviewed the professional risk assessment and the information concerning occupational health and safety rules for performing remote work, and undertakes to comply with them.
The professional risk assessment should contain information concerning:
- Rules and methods for proper organisation of the remote workstation, taking ergonomic requirements into account
- Rules for safe and hygienic performance of remote work
- Actions to be performed after completion of performance of remote work
- Rules for proceeding in emergency situations creating a danger to human life or health.
On-the-job accidents when performing remote work:
In the case of remote work, employers will have to apply as relevant the Labour Code provisions concerning work accidents. The employer should conduct an inspection of the accident site after an accident during remote work is reported, within a time agreed by the employee, or a household member if the employee is unable to agree on a date due to the employee’s health condition, and members of the post-accident team.
The post-accident team can waive the inspection of the site of an accident during remote work if the team finds it has no doubts about the circumstances and causes of the accident.
The Social Insurance Institution (ZUS) will decide questions of payment of accident insurance benefits and whether the employee is entitled to such benefits. ZUS will also decide whether the accident was caused by the employee intentionally or as a result of gross negligence.
If an accident occurred during remote work by an employee under the influence of alcohol, narcotics or psychoactive substances, and the employee significantly contributed to causing the accident, medical documentation will be required before awarding accident insurance benefits.
Regulations for assigning and paying for overtime during remote work
Under the regulations governing remote work, for the purpose of assigning overtime work and calculating overtime pay, overtime work by remote workers should treated as if it were performed at the workplace.
Business travel and remote work
Assignment to remote work does not in itself constitute a change in the permanent place of work, but only enables work to be performed at a place other than the permanently fixed location. As a rule, if an employee working remotely is instructed to visit the office, it will not constitute business travel.
Occasional remote work
The new regulations also provide for “occasional remote work.” Remote work may be performed occasionally, at the employee’s request made in writing or electronically, for a duration not exceeding 24 days within the calendar year.
- Occasional remote work is a form of work performed partially remotely. It may be incidental, and should be used solely to meet the employee’s needs.
- Only the employee may request this form of remote work, by submitting an appropriate application.
Reimbursement of costs of occasional remote work: the employer can reimburse the employee for costs directly connected with such work. Under the Personal Income Tax Act, the reimbursed costs will not be taxed as the employee’s income.
Inspection of the performance of occasional remote work, and compliance with occupational health and safety regulations and data protection procedures, is conducted under rules agreed with the employee.
Where to store requests for remote work?
These documents should be stored in section B of the employee’s personnel file. If the employer maintains personnel files in paper form, and receives a document in electronic form, the employer should print it out and certify that it conforms to the document submitted electronically.