Remote working – challenges and practical solutions.

The epidemic situation in the country has caused an exponential increase in the practical importance of remote working. At the beginning of this year, it was still treated with great caution by many employers, but overnight it became a means of ensuring business continuity during the national lockdown and, in many cases, a prospect for long-term reduction of operating costs. For these reasons, employers are increasingly considering increasing the possibility of remote working on a permanent basis. However, this involves a number of legal and organisational challenges that need to be borne in mind.

Remote work and the Labour Code

The concept of ‘remote work’ is foreign to the Labour Code and there is no comprehensive legal regulation in this area. Until now, remote work has been more of a factual than a legal phenomenon. It should be distinguished from teleworking, which is regulated in the Labour Code. Teleworking is characterised by regular (permanent) work outside the workplace using electronic means of communication. Remote work, on the other hand, is understood in practice as incidental work outside the permanent place of work, without changing the employment contract. However, ‘remote’ work is not synonymous with performing work using means of direct remote communication, but also offline, i.e. without their mediation. In addition, until now, remote work has most often been performed on the initiative or at the request of the employee and on a voluntary basis.

The term ‘remote work’ was only introduced into statutory law this year by the Anti-Crisis Special Act. Although subsequently extended in Shield 4.02, the regulation of the Special Act is only partial and does not resolve many practical issues related to performing work outside the employer's office. This is because the regulation is focused on achieving the overarching goal of the Special Act – counteracting the negative effects of the COVID-19 epidemic. Hence, the remote working model adopted in the Special Act differs from the current practice in this area. Under the Special Act, remote work is performed at the employer's request, not at the employee's request. However, the remote work order may only be issued for the purpose of counteracting COVID-19 and shall only apply for a specified period of time. Currently, this is the period of the state of epidemic or epidemic threat and the following three months after their cancellation. Refusal to comply with this instruction may result in the imposition of a disciplinary penalty on the employee. Hence, there can be no question of voluntariness.

During the summer months, there were signals from the Ministry of Family, Labour and Social Policy regarding plans to regulate remote work permanently in the Labour Code. However, there is no draft bill in this regard, or even an outline of the idea. Therefore, the final shape and complexity of this regulation remain unknown. The same applies to the date of entry into force of these solutions. This is important, given that many companies have been using remote working on a large scale for several months, and many important issues in this area remain unregulated.

So what areas may pose challenges for companies?

Monitoring the effectiveness of ‘remote’ employees

Employers' serious concerns about remote working relate to the issue of the effectiveness of remote work and the ability to monitor employees performing tasks in this mode. It is true that employers, in the face of the economic crisis, may have seen an increase in the efficiency of employees working remotely in the initial period, but maintaining this efficiency can be a challenge. Working remotely does not exempt employees from their basic duty to perform their work conscientiously and diligently, but the lack of daily supervision can lead to a decline in motivation.

One way to supervise an employee remotely may be to introduce more extensive monitoring of e-mail, time spent in front of the computer and websites visited. However, it should be remembered that any form of monitoring constitutes an invasion of employees' privacy. Therefore, its implementation should be preceded by an analysis of the adequacy of the solution used. It is also important to comply with the formal requirements set out in the Labour Code in this regard. The current regulations do not provide for any exceptions or special regulations for ‘remote’ or ‘teleworking’ employees.

Regardless of monitoring, Shield 4.0 has granted employers the right to instruct remote workers to keep records of their activities, including in particular a description of those activities, as well as the date and time of their performance. The solutions provided for in the Special Act, including Shield 4.0, are of an ad hoc nature. However, the expiry of the Special Act will not deprive companies of the possibility of using this method of verifying the use of working time by employees. This is because determining the method of reporting completed tasks falls within the normal authority of the employer to issue work-related instructions to employees. Therefore, it will be possible to continue to hold employees accountable for their duties performed at home on the basis of their ongoing records even after the COVID-19 epidemic has ended.

Provision of work tools

An important point in the discussion on continuing remote work is to provide employees with the materials and tools they need to perform their work and to define the rules for employees' use of private tools. It should be remembered that it is the employer who should provide employees with the tools and materials necessary to perform their work. This may require appropriate organisational preparation on the part of employers, e.g. replacing desktop computers with laptops.

The special act currently provides for the possibility for employees to use their own tools or materials when working remotely. The introduction of this solution for the purposes of combating the epidemic is definitely justified. Without it, in some organisations it would not be practically possible to introduce remote working due to a lack of organisational preparation, even if the type of work allowed for it. However, it should be taken into account that in the case of a ‘target’ regulation of remote work, this possibility will be limited. Furthermore, the use of an employee's private property for business purposes may necessitate the settlement of related costs incurred by the employee (payment of equivalents) and, consequently, the introduction of a procedure for settling these costs.

Data security

It should be remembered that remote working involves an increased risk of information leakage. Employees may use inadequately secured Wi-Fi networks in the performance of their duties, in places where unauthorised persons will have access to the employee's computer or telephone. It is therefore advisable to introduce appropriate technical solutions to mitigate this risk.

It should also be remembered that the current regulations do not specify what specific obligations an employee should comply with in order to prevent data leaks. For example, the current Special Act indicates that an employee may use tools not provided by the employer, provided that this allows for the respect and protection of confidential information and other legally protected secrets, including trade secrets. This condition has not been clarified by the legislator. Therefore, all detailed security procedures should be designed and communicated to employees by the employer.

Compliance with health and safety requirements

Numerous doubts also arise in relation to the health and safety of remote work. The fact that remote work is performed outside the permanent place of work does not modify the employer's obligations to ensure safe and hygienic working conditions, as is the case with telework. Although the regulations of the Special Act make the admissibility of remote work dependent on its type and the employee's skills and technical and spatial capabilities to perform such work, they do not provide for any control and prevention mechanisms in this area.

In these circumstances, it seems very difficult for employers to fulfil their health and safety obligations, especially when employees work from home, as monitoring their working conditions could be considered a significant intrusion into their privacy. On the other hand, working in conditions that do not comply with health and safety rules may, in extreme cases, lead to the diagnosis of an occupational disease in the future. Remote working also has no impact on the procedures for determining the circumstances and causes of accidents at work. It should be borne in mind that in the event of an accident, the accident investigation team may even classify it incorrectly (e.g. due to the lack of witnesses or the inability to carry out an inspection).

Remote work regulations

Regardless of whether an employer recommends that employees work remotely to combat COVID-19, is considering introducing this option in the event of possible future crises, or whether they allow for a permanent increase in work flexibility using this tool, they should consider regulating the rules for remote work in their internal labour regulations. Otherwise, in the absence of specific statutory regulations in this area, general labour law provisions will apply to remote work.

The remote work regulations should primarily outline the general framework for performing work under these conditions, in particular the positions in which remote work will be permitted, the acceptable frequency of use of this solution, the locations from which employees may perform work, and the minimum conditions that these locations should meet. The regulations should also cover all ‘technical’ issues related to remote work. Clear definition of the above issues should, on the one hand, properly manage employees' expectations and, on the other hand, limit the employer's exposure to risks such as confidential data leaks or potential claims.

1 ‘Special Anti-Crisis Act’ / ‘Special Act’ – Act of 2 March 2020 on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws 2020, items 374, 567, 568, 695, 875)

2 ‘Shield 4.0’ – Act of 19 June 2020 on subsidies for interest on bank loans granted to entrepreneurs affected by the effects of COVID-19 and on simplified proceedings for the approval of arrangements in connection with the occurrence of COVID-19 (Journal of Laws 2020, item 1086)