1. Remote work
1.1. General issues
On the 7th of April 2023, the new regulations on remote work will come into force. At the same time, telework will be repealed.
The amendment will affect in fact all employers. Employers using telework will have 6 months to adapt their work regulations and telework contracts. Other employers, on the other hand, will have to consider introducing regulations on remote work, due to the fact that remote work could be mandatory on request of certain categories of employees.
Remote work may be performed wholly or partly at the place indicated by the employee and agreed with the employer in each case, including at the employee’s home address, in particular by means of distance communication.
1.2. Use of remote work
Remote work can be performed:
- by agreement of the employer and the employee
- by the employer’s order
- at the employee’s request
1.2.1. Agreement between employer and employee
Remote work will be performed on the basis of an agreement between the employee and the employer concluded:
- when concluding an employment contract
- during employment
1.2.2. Employer’s order
Remote work will be also possible by the order of the employer provided that the employee submits- in paper or in electronic form and immediately before giving the order – a statement that he or she has the housing and technical conditions to perform remote work. The order may be given:
- during the state of emergency, state of epidemic threat or state of epidemic and within 3 months after their cancellation or
- during the period in which the employer’s provision of safe and hygienic working conditions at the employee’s current place of work is temporarily impossible due to force majeure.
The employer may withdraw the remote work order with at least two days’ notice.
In the event that the employee undergoes a change of housing or technical conditions which make it impossible for him to work remotely, he is obliged to notify the employer, who will immediately withdraw the remote work order.
1.2.3. Employee’s request
The employer will be forced to accept the request for remote work of the following categories of employees:
- employee – parent of a disabled child;
- a pregnant employee,
- an employee raising a child up to the age of 4,
- an employee taking care of a disabled member of the close family or another disabled person remaining in the same household.
The employer may refuse only when this work is impossible due to:
- work organization or
- the type of work performed by the employee.
The employer is obliged to inform the employee about the reason for the refusal to accept the request (in electronic or written form) within 7 working days.
1.2.4. Occasional remote work
- will be performed only at the employee’s request,
- up to the maximum of 24 days in a calendar year.
1.3. Rules for performing remote work
Remote work will require the creation of internal remote work regulations.
The remote work regulations will be created by the employer:
- in consultation with the company trade union organization, if there are more trade union organizations in cooperation with these organizations,
- in the absence of trade union organizations in consultation with employee representatives
- in the absence of the above – in an agreement concluded directly with an employee.
The agreement and the regulations specify in particular:
- a group or groups of employees who may perform remote work;
- rules for covering the costs of remote work;
- rules for inspection of the performance of remote work and safety rules compliance.
1.4. Back to stationary work
Each party to the employment contract will be able to demand (in paper or electronic form) to have the previous conditions of work restored.
In the absence of an agreement between the parties, the current working conditions will be restored after 30 days from the date of receipt of the request.
1.5. Employer’s obligation to cover the costs of remote work
The amendment to the Labour Law obliges employers to provide employees working remotely with appropriate materials and tools, as well as their installation, service or maintenance and to cover the costs thereof.
In addition, employers will be obliged to cover the costs of electricity and telecommunication services and other costs directly related to the performance of remote work, and the rules for their coverage should be set out in agreements or regulations.
If the employee uses tools not provided by the employer, the employee will be entitled to a cash equivalent.
The aforementioned costs may be paid to employees as a lump sum.
These costs will not constitute the employee’s income within the meaning of the PIT Act.
1.6. Employer’s inspection powers and health and safety of remote working
The amendment also regulates in detail the right of inspection by the employer, e.g.:
- Performance of remote work by an employee,
- in the field of health and safety rules,
- compliance with information security and protection requirements, including personal data protection procedures.
In addition, the Act sets out health and safety rules for remote work, including in particular:
- the employer’s duties, including the need to create a risk assessment for remote work;
- the rules for carrying out health and safety training for remote work.
1.7. Recommendations
In connection with the above, it will be necessary for the employers to adapt their existing internal work regulations with regard to remote work – performed so far on the basis of the so-called Covid Shield and telework – and to agree on the new regulations for performing remote work.
In the case of employers who have not provided for such solutions so far, it will be necessary to determine the work positions in which the organization of work and the type of work do not exclude the use of remote work and to decide on the creation of regulations for remote work. This is because, if such work positions exist, the employer may be obliged to accept the employee’s request to work remotely and will face the need to determine all aspects related thereto.
In addition, employers will be obliged to create a risk assessment of remote work positions.
We can assist you with detailed information and drafting the necessary documentation.
2. Sobriety check
2.1. General issues
From the 21st of February 2023 the legislator has regulated the employer’s power to control the sobriety of employees. This applies not only to alcohol but also to substances acting similarly to it. A list of such substances is defined by the decree of Minister of Health.
The control may be preventive and the employer may introduce such control if it is necessary to ensure the protection of health of the employees or of other persons or the protection of property.
The sobriety check must be carried out without violating the dignity or other personal rights of the employee. It shall be carried out by means that do not require a laboratory test, i.e. by means of a so-called breathalyser. The employer is obliged possess a document confirming the calibration of such a device. The detailed requirements in this respect are set out in the Minister’s decree.
2.2. Introduction of sobriety checks
In order for the employer to introduce sobriety check in the workplace, an adequate provision in the internal work regulations must be foreseen (e.g. in the collective agreement, or, if the employer is not covered by a collective agreement in the work regulations and – in the absence of these – in a notice from the employer).
The internal work regulations should include:
- introduction of sobriety checks
- groups of employees obliged to undergo sobriety checks (e.g. list of functions),
- the manner in which the sobriety test is carried out,
- the time and frequency of the test.
The internal regulations will come into force two weeks after informing the employees in the manner adopted by the employer. If a new employee is hired, he or she should be notified of the current sobriety check rules before commencing the work.
2.3. The conduct of sobriety testing and consequences
If, as a result of a sobriety check, a state indicative of alcohol consumption or a state of intoxication within the meaning of Article 46(2) and (3) of the Act on Upbringing in Sobriety and Counteracting Alcoholism of 26 October 1982 (i.e. Journal of Laws 2023, item 165) is determined, the employee may not be allowed to perform work.
By the state indicative of alcohol consumption we mean a situation in which the alcohol content in the body is or leads to:
- alcohol concentration in blood from 0.2‰ to 0.5‰ or
- presence in exhaled air from 0.1 mg to 0.25 mg of alcohol in 1 dm3
A state of intoxication, on the other hand, is a situation in which the alcohol content in the body is or leads to:
- alcohol concentration in blood of more than 0.5‰ or
- the presence in exhaled air of more than 0.25 mg of alcohol in 1 dm
In addition, an employee will also not be allowed to perform work if there is a reasonable suspicion that the employee has come to work in the state described above or has consumed alcohol while at work.
Both at the request of the non-admitted employee and of the employer, a sobriety test may be carried out by a law enforcement authority. The details of such testing are set out in the decree of Minister od Health. As a general rule, the test is carried out by non-laboratory means, but it remains possible to carry out a sobriety check based on the results of a blood test.
In the event that the result of the sobriety test does not indicate a state of drunkenness or a state of intoxication, the period during which the employee was not allowed to work is a period of his/her paid absence.
2.4. Storage of sobriety checks protocols
If the check indicates a state of drunkenness or a state of intoxication, then the employer stores such information, containing the date, hour, minute and the result of such a test, in the employee’s personal files for a period not exceeding one year.
However, if the employer decides to impose a warning, reprimand or fine on the employee, then the information indicated above shall be kept until the penalty is declared null and void, in accordance with Article 113 of the Labour Code.
If the information on the sobriety test is to be used as evidence in legal or administrative proceedings, such as a court case, then this information should be kept by the employer until the proceedings have become final.
2.5. Who can be tested?
It must be emphasised that the above-described regulations apply not only to employees having an employment contract but also to employers who organise the work performed by:
- natural persons performing work on a basis other than an employment relationship (e.g. a contract of mandate or other contract for services)
- natural persons conducting a self-employed business (B2B).
This means that an employer can test the sobriety not only of its employees but also its contractors.
2.6. Recommendations
As a result of the above changes, it will be necessary for the employers to decide whether the employer will conduct a preventive sobriety control and to adapt the existing internal work regulations in this respect.
We can assist you with detailed information and drafting of the necessary documentation.
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