Face masks in the workplace and remote working during quarantine.

Recent changes in the law have addressed many issues that employers have faced in their everyday lives during the epidemic. How do the new regulations affect employment relationships?

The obligation to wear masks at work

On 28 November, the rules on wearing masks changed. Until now, successive regulations required the nose and mouth to be covered in public places (initially in enclosed spaces, later also outdoors), but people performing professional activities in the workplace, as long as they had no contact with people ‘from outside’, were exempt from this rule. From 28 November, the obligation to wear masks applies to everyone in the workplace, unless they are alone in a room.

The new restrictions were introduced by the Regulation of the Council of Ministers of 26 November 2020 on the establishment of certain restrictions, orders and prohibitions in connection with the state of epidemic (‘Regulation’).

The provisions of the Regulation do not allow for any exceptions that would exempt the need to cover the nose and mouth, e.g. in social rooms. This means that from Saturday, employees must ensure that no one accompanies them, e.g. when eating a meal.

What does the new regulation mean for employers? First and foremost, it means that during the period of validity of the Regulation, i.e. until 27 December 2020, employers may issue binding instructions to employees to cover their nose and mouth. Previously, this right was not clearly stated in the law and could only be interpreted, in justified cases, from the general principles of labour law regarding the provision of safe and hygienic working conditions.

The Regulation does not impose new obligations on employers in terms of ensuring sanitary conditions. As before, workplaces are required to provide employees (regardless of the basis of employment) with disposable gloves or hand sanitiser, as well as a distance of at least 1.5 m between workstations, unless this is impossible due to the nature of the work performed at a given workplace, and the workplace provides personal protective equipment related to combating the epidemic.

However, employers are not required to provide masks to employees – each employee is individually responsible for effectively covering their nose and mouth, and may use either ‘professional’ solutions (such as a mask, face shield or protective helmet) or solutions that do not involve additional costs (i.e. clothing or part of clothing) .

Importantly, the general obligation to cover the nose and mouth during the COVID-19 epidemic since 29 November has its source in the amended Act on the prevention and control of infections and infectious diseases in humans, which includes a provision allowing for the introduction of a requirement to cover the mouth and nose in certain circumstances, places and facilities, and in specific areas, together with the manner of implementing this requirement. Violation of this provision is punishable by a fine or a reprimand.

The extension of the ‘mask requirement’ to workplaces, established by the Regulation, is based on the legal status prior to the amendment of the Act on Combating Infections and Infectious Diseases in Humans. The new legal basis for the universal obligation to cover the nose and mouth necessitates the issuance of a new regulation, which is to be expected. Despite this desynchronisation, penalties for non-compliance with this obligation should be expected.

Remote work during quarantine

The Act introducing the universal obligation to cover the nose and mouth also regulates the issue of performing work during quarantine. Until now, when an employee subject to mandatory quarantine wanted and was able to work, there were doubts as to the legal basis for such a solution.

Under the new regulations, during a state of epidemic or epidemic threat, employees and other persons subject to mandatory quarantine may perform the work specified in their contract remotely. Remote work during quarantine may only be performed with the employer's consent. If the parties to the employment relationship take advantage of this solution, the employee is entitled to their ‘regular’ remuneration and cannot receive sick pay at the same time.

What about isolation? Although in some cases COVID-19 infection may be asymptomatic, the new regulations do not grant such persons the possibility of remote work. However, this legal situation may change – another bill is already being debated in the Sejm, which supplements the above regulation and grants employees in isolation the same opportunity that those in quarantine already enjoy.

It is worth noting that as a result of the recent change in regulations, the inability to work due to mandatory quarantine or isolation (including at home) has been equated with incapacity for work due to illness. This means that an insured person who is unable to work due to quarantine or isolation (even in the form of remote work) is entitled to sick pay without the need for a relevant decision from the competent authority.

EDIT 2 December 2020: As of 2 December, the rules on wearing masks have changed again. Until 28 November, the obligation to cover the nose and mouth did not, in principle, apply to persons performing professional activities in workplaces (with the exception of employees who had contact with persons ‘from outside’). Then, for several days, the obligation to wear masks applied to everyone in the workplace, unless they were alone in a room. Starting on 2 December, this ‘mandatory’ solution for workplaces has been significantly relaxed: from now on, employers will decide whether the ‘mask’ obligation will apply to them.

The new rules were introduced by the Regulation of the Council of Ministers of 1 December 2020 on the establishment of certain restrictions, orders and prohibitions in connection with the state of epidemic (Journal of Laws of 2020, item 2132) (the ‘Regulation’).

The Regulation provides for certain exceptions to the obligation to cover the nose and mouth imposed by the employer: it will be possible to uncover the nose and mouth when eating or drinking, as well as when a person is alone in a room.

What does the new regulation mean for employers? First and foremost, it means that during the period of validity of the Regulation, i.e. until 27 December 2020, they may take a unilateral decision to introduce the obligation to cover the nose and mouth in their workplace and issue binding instructions to employees in this regard. Prior to 28 November, this right was not clearly stipulated in the law and could, at most, be interpreted in justified cases from the general principles of labour law concerning the provision of safe and hygienic working conditions.