Remote working. What changes might the proposed regulations bring? Part two.
In the wake of temporary regulations on the admissibility of remote working, introduced in connection with the COVID-19 pandemic, Polish legislators have begun work on a more comprehensive and permanent regulation of this issue. A draft bill on this subject has recently been published. According to this draft, the current regulations allowing employees to work remotely will be replaced by new solutions. The entry into force of the new solutions is to be correlated with the end of the need to apply pandemic solutions. The amended regulations are to come into force three months after the end of the COVID-19 epidemic and epidemic threat in Poland has been announced.
In our previous study, we focused on the general issues of the proposed regulations, in particular the types of remote work and how it is to be introduced. This time, we will discuss the proposed solutions in terms of more specific aspects of this model of work.
The place of remote work depends on the express consent of the employer
The temporary solutions currently in force, introduced in connection with COVID-19, did not regulate the rules for determining the place of remote work by the parties to the employment relationship. Employers therefore had doubts as to whether they had a legal basis for asking employees about their place of work.
The uncertainty resulting from the lack of regulation was widely criticised. The place of work may have practical implications for the employer's obligations or risks, e.g. in terms of data leakage, including trade secrets. In practice, it also happened that, taking advantage of remote employment during the pandemic, employees decided to perform their duties outside Poland without informing their employer. Employees were not aware that working abroad could have implications for immigration obligations in the country where the work was performed, or for the tax and contribution status of their remuneration.
The draft amendment essentially resolves these issues. According to the amendment, employees will no longer be able to freely decide where to perform their work remotely. Not only will the employer be able to request information from employees in this regard, but the place of work will also be subject to the employer's approval. This will limit the company's exposure to risks resulting from arbitrary decisions made by employees. Regulating this issue is certainly a step in the right direction.
Materials and tools
As in the case of temporary COVID solutions, according to the draft amendment, as a rule, the company will be obliged to provide remote employees with all the tools and materials necessary to perform their work.
Employees will also be able to use their own equipment if they are not provided with work tools. However, unlike the COVID solutions that are still in force, the legislator has not decided to regulate the guidelines under which this will be possible. The rules for the use of private materials and tools by such employees should be subject to the employer's internal regulations.
The proposed solutions also regulate an area that was omitted from the COVID regulations, which was often pointed out as a gap in the regulation. The proposed amendment clearly states that the company will be obliged to cover the costs incurred by the remote employee for the use and maintenance of work tools and materials (costs of electricity, internet access and other costs directly related to remote work). However, if the employer does not provide such tools or materials, they will be obliged to pay employees an additional cash equivalent to compensate them for the use of private equipment and materials. In order to simplify monthly settlements, reimbursement of costs and compensation may be replaced by a fixed lump sum agreed by the parties.
However, it should be remembered that the draft provisions do not specify how the amount of compensation or lump sum is to be determined. The establishment of these rules has been delegated to employers. The same applies to the indication of other (not explicitly mentioned in the draft) additional costs that the employer decides to cover. This should be regulated in detail by internal regulations introduced in this regard at the workplace.
Monitoring work performance
A major problem for employers in relation to remote work is the issue of its effectiveness and the ability to monitor remote employees. At the beginning of the pandemic, employers may have noticed an increase in employee productivity. However, in the long term, the lack of direct, daily supervision and the feeling of being invisible may cause a decline in employee motivation, especially since remote work is often accompanied by many distractions.
The draft amendment clearly provides for the employer's right to monitor the performance of remote work at the place where it is performed. As in the case of reimbursement of expenses, detailed rules in this regard should be set out in the employer's internal regulations. However, the legislator clearly requires that monitoring take place during the remote employee's working hours. The monitoring must not violate the privacy rights of the employee or other persons. Nor may it interfere with the use of the premises by other members of the household. In this respect, the solutions provided for in the draft amendment are essentially consistent with the existing rules on teleworking.
In addition to physical monitoring at the employee's remote workplace, one of the methods of monitoring may be the introduction of more extensive monitoring of e-mail, time spent in front of the computer and websites visited by employees. However, it should be remembered that any form of monitoring constitutes an invasion of employees' privacy. Therefore, the implementation of monitoring should be preceded by an analysis of the adequacy of the planned solution. It is also important to comply with the formal requirements set out in the Labour Code, which require the introduction of appropriate provisions in the work regulations and informing employees about the monitoring. Regulating the monitoring of remote employees in the remote work regulations may prove insufficient. The proposed amendment does not provide for any exceptions to the general provisions in this regard.
Health and safety at work when working remotely
The draft amendment limits the obligations of the workplace in relation to health and safety at work. This is due to the fact that implementing them in full could encounter difficulties, especially when an employee works from home. Therefore, as in the case of teleworking, the draft law transfers some of the obligations related to the organisation of the workplace to the employees.
On the other hand, however, the draft amendment emphasises the company's educational obligations towards remote employees in the field of health and safety. The aim is to give employees the basis for independently assessing their working conditions from this perspective. Therefore, in particular with regard to remote employees, the provisions of the Labour Code exempting them from the obligation to undergo periodic training are to be excluded.
However, remote working will not affect the employer's obligations to determine the causes of any accidents that may occur during remote working. As a rule, proceedings to determine the circumstances and causes of accidents at work should be conducted in the usual manner. In order to avoid any doubt as to whether the accident commission is authorised to conduct an investigation at the employee's home, the draft bill clearly states that notification of an accident at work will be treated as the employee's implied consent in this regard.
This solution should be viewed very positively. A similar provision was missing in the previous regulations on teleworking, which was raised by employers as hindering their ability to conduct investigations. Remote workers usually perform their duties from their place of residence. In practice, however, there have been cases where employees have refused to allow the accident investigation committee into their homes. It was therefore difficult for employers to reconcile their statutory obligations in this regard with the employee's right to privacy.
Protection of confidential company information
It should be remembered that remote working involves an increased risk of confidential information leaks, especially when employees use inadequately secured Wi-Fi networks or work in places where unauthorised persons may have access to their computers or phones. It is therefore advisable to introduce appropriate technical and procedural solutions to mitigate this risk.
It should also be remembered that the regulations in force in Poland do not specify what specific obligations an employee should fulfil in order to prevent data leaks. The amendment to the Labour Code regulating remote work also does not provide any answers in this regard. Therefore, all detailed security procedures should be developed by the employer.
The draft bill not only fails to provide for any binding solutions, but also does not even mention the regulation of security issues as one of the mandatory elements of internal regulations concerning remote work. However, it is worth regulating this issue in detail in order to limit the risk of data leaks and, if this cannot be prevented, to be able to take action against employees who are negligent in this regard.
Internal regulations on remote work
As mentioned above, the draft bill does not provide for detailed rules on remote work, leaving many areas to be regulated in internal labour law provisions. The specific nature of a particular company may influence the scope and type of solutions applied (e.g. with regard to the protection of confidential data or the monitoring of work performance). These should be regulated: (i) in an agreement concluded by the employer with trade unions (if any operate in the establishment), (ii) in the remote work regulations published by the employer, (iii) in an individual agreement concluded with the employee, or (iv) in a remote work order issued by the employer, depending on the circumstances of the case.
Remote work regulations should primarily define the general framework for performing work in this manner, in particular the groups of employees who are eligible for remote work and the permissible frequency of using this solution (if it is reasonable to introduce such restrictions).
The regulations should also cover all technical issues related to remote work, such as:
- rules for reimbursing employees for the costs of remote work and determining the equivalent for the use of private tools and materials and lump sums;
- monitoring remote work; and
- monitoring the remote workplace for compliance with health and safety conditions.
A clear determination of the above issues should, on the one hand, manage employee expectations (e.g. whether they are eligible for remote work) and, on the other hand, limit the employer's exposure to risks such as possible future employee claims.