Remote work. What changes may the proposed regulations bring?

The global COVID-19 pandemic has caused an exponential increase in the practical significance of remote working. In Poland, where just a year ago many employers were quite cautious about allowing remote working, it has suddenly become a way to ensure business continuity and often a prospect for long-term reduction of operating costs. However, remote working brings with it a number of legal and organisational challenges that need to be addressed.

Current regulations

To date, Polish labour law has lacked comprehensive regulations on remote working. For many years, the provisions of the Labour Code only allowed remote work in the form of telework, understood as regular and permanent work outside the company's premises using electronic means of communication. However, it is debatable whether telework can be used in a situation where employees combine remote work with work in the office.

This regulation limited the scope of tasks that could be performed remotely. The law was silent on work performed remotely in ‘offline’ mode, without the use of electronic means of communication, and on incidental cases of so-called home office. However, it was the latter case that had the greatest practical significance. Therefore, until the COVID-19 pandemic, remote work was more of a factual than a legal phenomenon, responding to the need of employees for greater flexibility in the way they performed their work.

Remote work on a larger scale was only introduced into statutory regulations in Poland in 2020 under temporary anti-crisis measures in connection with the spread of the COVID-19 epidemic. On this basis, remote work could be performed at the employer's request, but only: (i) to counteract COVID-19; and (ii) for a limited period, currently limited to the duration of the epidemic and the following three months after the state of epidemic (or state of epidemic threat) has been lifted.

The temporary regulations introduced in connection with counteracting COVID-19 do not regulate the introduction of remote work at the employee's request. Therefore, to date, there are no regulations in this regard.

However, this is only a temporary solution, which will be repealed after the COVID-19 epidemic in Poland has been declared over.

In response to a clear market need, Polish legislators have begun work on a more comprehensive and permanent regulation of remote work. A draft bill in this regard was recently published. According to the draft, the current regulations allowing employees to work remotely will be replaced by new solutions three months after the end of the COVID-19 epidemic in Poland is announced.

In this article, we describe the remote working models envisaged by the legislator.

Abolition of teleworking

The draft bill provides that companies and employees will be able to agree to perform work in whole or in part outside the company's premises. The use of electronic means of communication will no longer be necessary for this. As a result, more tasks will be able to be performed remotely.

This also means that the regulations currently governing teleworking will be repealed. According to the draft bill, companies using this form of employment will have six months to adapt their internal regulations and employment contracts with teleworkers to the new solutions.

However, some of the planned solutions duplicate those already in place under the current legal framework. For example, teleworking is performed on the basis of an agreement between the company and the employee and may be introduced at the beginning of employment – in the employment contract, but also later. Employees have also been given the right to apply for employment in the form of telework. In the case of an application from an employee in a difficult life situation (e.g. caring for a disabled child), the employer is obliged to give their consent, if possible. The same mechanism will most likely be retained for remote work. On the one hand, this encourages the employment of people whose non-work responsibilities may require greater flexibility in their employment. On the other hand, however, the final decision on making the rules of work more flexible rests with the employer.

‘Emergency’ remote work introduced as a permanent mechanism

In addition, in the event of various types of extraordinary circumstances in the future, the legislator has decided to include the ‘emergency’ solutions tested during COVID-19 in the final regulation. This will allow employers to unilaterally instruct employees to work remotely in the event of a state of emergency or epidemic being declared in the future. Therefore, there will be no need to grant them additional powers in the event of a worst-case scenario, as was the case at the beginning of the COVID-19 epidemic in Poland in the spring of 2020.

Employers will also be able to use a similar solution whenever it is necessary to ensure safe and hygienic working conditions for employees. This may apply in particular to a fire in the workplace or similar situations, provided that the role in question can be performed remotely. However, this instruction will only be feasible if the employee has the technical and housing conditions to perform their work in this way. Otherwise, the company will have to either organise an alternative workplace for the employee or apply downtime to them. This mechanism is similar to that provided for in the temporary ‘COVID’ solutions.

The draft bill does not allow employers to instruct employees to work remotely when there are no ‘emergency’ situations. In such cases, the employee's consent will always be required.

Incidental home office

In addition, employees will be able to request ad hoc home office. However, in such a case, the total number of remote working days will be limited to 12 per calendar year. Companies will be required to agree to this, if possible. The draft bill does not provide for agreements between the parties or advance planning of home office days. This may raise concerns that, in practice, employers may not have effective mechanisms to object to employees' decisions to work remotely on a given day.

Cessation of remote working

During the first three months of remote working, either party will be able to submit a binding request to cease this arrangement. However, such a request will not take effect immediately. The parties will have to agree on a date for returning to office-based work (but no later than 30 days).

After the first three months, such a request by an employee will no longer be binding on the employer, but should be taken into account as far as possible. If, on the other hand, the employer initiates a change after the first three months, they will have to obtain the employee's consent by way of an annex to the employment contract or by way of a notice of amendment.

A similar mechanism has been introduced for teleworking. The continuation of this solution seems to be justified. It gives the parties the opportunity to ‘test’ the functioning of remote work and withdraw from it if it does not work. On the other hand, it provides greater stability and certainty for models that are already in place.

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In the next study, we will focus on specific solutions provided for by the legislator in the field of remote work, in particular those concerning the supervision of work performed in remote conditions, the employer's health and safety obligations, and the additional costs that the employer will be required to bear in connection with remote work.