New regulations on remote working in Poland

In the Act of 1 December 2022 amending the Labour Code Act and certain other acts (Journal of Laws 2023, item 240), the legislator decided to supplement the Labour Code with regulations on remote working. These provisions enter into force on 7 April 2023.

Hereafter we outline the most important remote working regulations that will become obliging for employees and the employer.

Definition of remote working

Remote work has been defined as work performed wholly or partly at a 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 remote direct communication. This means that the regulations in question should be applied both when the employee works exclusively remotely and when the work is performed in a hybrid mode.

It should be noted that the definition indicates that remote work is to be performed at a location agreed upon with the employer. It is therefore not allowed for an employee to arbitrarily decide where to perform work without informing the employer (e.g., working remotely during a holiday trip without informing the employer).

Jobs that can’t be remote

It is clear that the character of some work may exclude doing it remotely. However, in order to prevent possible misunderstandings, the Act explicitly identifies work that certainly cannot be performed remotely. These are:

• particularly hazardous work,
• work which results in exceeding the permissible standards of physical agents set for living quarters,
• work with hazardous chemical agents as referred to in the Health and Safety at Work Regulations,
• work involving the use or release of harmful biological agents, radioactive substances, and other substances or mixtures emanating offensive odours,
• work causing intense dirtiness.

Remote working on the employers’ instructions

It is possible for remote work to be carried out on the instructions of the employer. However, such an order may only be given in special, emergency circumstances, namely:

• during a state of emergency, a state of epidemic emergency, or a state of epidemic crisis and for a period of 3 months after they have been revoked

or

• during a period when it is temporarily impossible for the employer to ensure safe and hygienic working conditions at the employee’s current place of work due to force majeure (e.g., flooding).

Such an order will only be able to be issued for a specific period of time, and at the same time, the employer may revoke it at any time with at least two days’ notice. Such an order will only be effective if the employee has made a declaration immediately before the order is issued stating that the employee has the premises and technical conditions to perform remote work. Such statements may be submitted on paper or electronically. If the premises and technical conditions change so that the employee is no longer able to work remotely, the employee shall inform the employer immediately and the employer must withdraw the remote working order.

Remote working and the employment contract

The employee and the employer may agree that the work will be carried out remotely (in whole or in part) both when concluding the employment contract and during the employment. The introduction or modification of remote working arrangements does not require a written supplement to the employment contract. However, the parties may sign it if they see the need to do so.

Employees whose request to work remotely is binding

The employer and the employee may agree to work remotely on the initiative of both the employee and the employer. For some employees, however, their request to work remotely must be granted by the employer. Such employees are:

• pregnant persons,
• employees raising a child under the age of 4,
• employees caring for another member of their close family or another person living in their household who has a confirmed disability or a confirmed severe disability,
• employees-parents of a child with a proven severe and irreversible handicap or incurable life-threatening illness that arose during the child’s prenatal development or at birth,
• employees-parents of a child with a confirmed disability or a confirmed moderate or significant degree of disability as defined in the regulations on vocational and social rehabilitation and the employment of disabled persons,
• employees-parents of a child with, respectively, an opinion on the need for early support of child development, an evaluation on the need for special education, or an evaluation on the need for remedial classes.

The employer may only decline remote working by such persons if remote working is not possible due to the organisation of work or the type of work performed by the employee. Importantly, the employer must inform the employee on the reasons for such refusal within 7 working days of the employee’s request. Such information may be provided in writing or electronically.

Rules for remote working

The rules for remote working are set out:

• in an agreement concluded between the employer and the company trade union organisation or trade union organisations – if there operates more than one trade union organisation at the employer’s premises,
• in regulations after consultation with employee representatives – if the employer does not have a trade union organisation.

However, if the employer has neither issued regulations for remote work nor concluded an agreement, remote work is still possible. In such a situation, the rules for remote workg are set out in the order in which the employer directs the employee to work remotely or in the agreement concluded with the employee concerned.

Opting out of remote working

Sometimes it may be that the remote working model does not work in a particular situation. The legislator has provided a solution for such a situation. If the employee and the employer agree to work remotely during the course of their employment, either of them may request to stop working remotely and to restore the previous working conditions. The request to restore the previous working conditions is binding on the other party, so the employee’s request is binding on the employer and the employer’s request is binding on the employee.

However, there is an exception to this rule: as a general rule, the employer cannot step in with a binding request to stop the remote work of an employee who cannot be denied remote work. In the case of these employees, the employer’s request will only be binding if the continuation of the remote work is impossible due to the work organisation, or the type of work performed by the employee.

If either the employee or the employer declines to work remotely, the employee and the employer should agree on a deadline for the restoration of the previous working conditions, which shall not be longer than 30 days from the receipt of the request. Should the employee and the employer be unable to agree on when the employee is to return to stationary work, the reinstatement of the previous working conditions shall take place on the day following the expiry of 30 days from the date of receiving the request by the employee or the employer, respectively.

Reimbursement of expenses related to remote working

The new remote working regulations impose obligations on the employer to provide the employee with equipment for remote working and to bear the costs of performing remote work.

The employer must:

• provide the employee with the materials and working tools, including technical equipment, necessary for remote working,
• provide the employee with the installation, servicing, and maintenance of the work tools necessary for remote working (e.g., computer) or cover the costs related to the installation, servicing, and operation of these work tools,
• cover the costs for electricity and telecommunication services (internet, telephone – if used) necessary for the remote work,
• if the employee and the employer have agreed that the employee will use materials and equipment not belonging to the employer (e.g., private computer, a printer with paper and toner) in the remote work – pay the employee an allowance.

In addition, the employer and the employee may agree that the employer will also cover other costs directly related to the remote work. With regard to these costs and the allowance, the employee and the employer may agree on a lump sum, the amount of which will correspond to the expected costs incurred by the employee in connection with the remote work.

The benefits that the employee receives in connection with the remote work, i.e.:

• the provision of equipment,
• coverage of the costs related to the remote work (maintenance/service/installation of equipment, energy, and telecommunication services),
• allowance for the use of private equipment,
• a lump sum for energy and telecommunications services, as well as for the use of private equipment,

do not constitute taxable income with respect to PIT.

Control during remote working

The employer has the right to verify:

• the performance of remote working,
• in terms of security and information protection, including procedures for the protection of personal data,
• concerning health and safety at work.

The rules for carrying out such control should be specified in the work regulations, any agreement, or in the order for remote working.

In view of the fact that the control of remote work will most often take place at the employee’s place of residence, such control must be carried out in agreement with the employee during working hours. The legislator has clearly indicated that the performance of the control activities must not violate the privacy of the employee and other persons (e.g., co-residents) or impede the use of the home premises for their intended purpose.

Occasional remote work

Apart from remote working, which the employee and the employer may agree on in the employment contract or already at work, any employee may perform remote work on an occasional basis for up to 24 days per calendar year. To make use of this possibility, the employee must submit a request in writing or electronically.

Importantly, in the case of occasional remote work, the employee is not entitled to any reimbursement of electricity and internet costs, as well as an allowance for performing work on private equipment.

How to prepare for the new regulation of remote working?

In relation to the regulation of remote working in the Act, employers should:

• obtain a declaration from employees that each of them has the premises and technical conditions to perform remote work before issuing an order to perform remote work,
• introduce rules for remote working, but this is not a mandatory condition. The rules for remote working can be set out in an agreement with the employee or an instruction to the employee – if no rules will be introduced at the employer or until rules are introduced it will be necessary to prepare agreements or instructions.
• prepare information for employees including:
  • identification of the organisational unit of the employer in the structure of which the position of the employee performing remote work is settled,
  • identification of the person responsible for cooperation with the employee and authorised to control the workplace;
    Information on working conditions for new employees should also be updated with this information.
• update the data protection procedures, familiarise employees with them, and obtain confirmation from them (in writing or electronically) that they have read these procedures and that they are obliged to comply with them,
• update the risk assessment and obtain statements from employees that they have read the updated risk assessment and the information containing the health and safety rules for carrying out remote work and that they commit themselves to comply with them,
• obtain statements from employees confirming that safe and healthy working conditions are provided at the remote working site.

Source: The article was created in collaboration with our cooperation partner – JRD Tax Advisory Office

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