The future of remote working.

The following article refers to our previous publication: Remote working – challenges and practical solutions, which you can read here.

Remote work, which until now has been allowed by employers rather as an exception, has gained in importance during the current epidemic. The provisions of the Anti-Crisis Shield have regulated its ad hoc provision, granting employers the possibility of unilaterally ordering remote work solely for the purpose of counteracting COVID-19. Currently, remote work may be performed for a fixed period, during a state of epidemic or epidemic threat, and for three months after their cancellation. However, it appears that the institution of home office will become a permanent feature of the Polish legal system.

In our article entitled ‘Remote work – challenges and practical solutions’, we mentioned the regulation of remote work in the Labour Code, which was announced during the summer months. Although the draft legislation in this area has not yet been formally published and work on it is still ongoing, there have already been reports of solutions that may be applied in the future.

Definition of remote work

According to the announcements, remote work will be able to be performed entirely or partially outside the employer's premises or outside another permanent place of work specified in the employment contract or indicated by the employer. However, if the amendment comes into force in its announced form, the term ‘home office’ used in practice will not necessarily be adequate. Remote work will also be possible from a location other than the employee's place of residence.

Remote work is to be performed in particular using means of direct remote communication, but offline work is not excluded.

This means that, in principle, the code's definition of remote work will cover both cases previously understood as remote work, i.e. ad hoc work performed outside the workplace, as well as cases of telework currently regulated. The entire chapter of the Labour Code concerning telework is to be deleted. At the same time, it is planned to transfer many of the solutions previously adopted for teleworking to the field of remote work. However, replacing one solution with another raises questions about the validity of internal teleworking regulations and the need to change the regime for teleworkers.

Initiative to implement remote work

The draft regulation is expected to provide for similar rights for both parties to the employment relationship with regard to initiating remote work. This is good news for employees. It should be remembered that the practice developed so far was based on the use of remote work at the initiative of the employee. At the same time, the current regulation of remote work in the Anti-Crisis Shield has given only the employer the possibility to issue a binding order for remote work to the employee. This is justified by the special circumstances of performing remote work during the coronavirus epidemic.

The anti-crisis solution may also be included in the amendment to the Labour Code currently being prepared. The Code regulation is to allow for unilateral assignment of remote work by the employer. However, this will only be possible in specific situations: firstly, when a state of emergency or epidemic is declared, and secondly, if it is necessary due to the employer's obligation to provide the employee with safe and hygienic working conditions.

When and how to implement remote work?

As is currently the case with telework, the agreement to work from home is to be made when concluding an employment contract or during the course of employment.

Also, as in the case of teleworking, the rules for remote performance of duties are to be specified in an agreement between the employer and the trade union or representative organisations, or, in their absence, in regulations consulted with employee representatives. However, the absence of such an agreement or regulations will not preclude the possibility of remote work – in such a case, the rules for performing it are to be included in the employer's instructions or in a bilateral agreement with the employee, taking into account the employee's reasonable needs.

What if remote work does not work out?

Once agreed, remote work does not have to apply for the entire period of employment, according to the announcements. Within three months of the date of commencement of remote work, the parties to the employment relationship shall be entitled to submit a binding request to cease working in this mode and to restore the previous working conditions. After this period, the restoration of the previous working conditions is only possible by way of a notice of amendment.

Work tools and health and safety rules

The regulation also aims to shift the burden of responsibility for ensuring safe and hygienic working conditions to the employee. It is planned to introduce an obligation to obtain a statement from the employee regarding the fulfilment of the conditions (in particular, premises) for remote work before it begins. The regulations are also to grant the employer the right to monitor the performance of work at the place where it is performed, with the prior consent of the employee and with respect for their privacy.

Furthermore, according to the proposal under discussion, an employer assigning remote work will be obliged to: (i) provide the materials and tools necessary to perform remote work, (ii) cover the costs of installation and operation of these tools, and (iii) provide technical assistance and training in their use. However, if the employee uses their own equipment or materials, they will be entitled to a cash equivalent for their use. The rules for determining the equivalent should be regulated in an agreement/remote work regulations.

Project assessment

The direction taken by the draft amendment to the Labour Code with regard to remote work is viewed positively by both organisations representing the rights of employees and employers. The concept of regulating remote work strongly supports the flexibilisation of the way work is performed, which is undoubtedly a global trend.

On the other hand, it is impossible not to notice the similarities with the existing teleworking regulations and the repetition of their shortcomings. In this context, the main issues highlighted are the lack of solutions regarding working time, discrepancies with regulations on employee monitoring, and the failure to take into account new technologies which (given the serious risk of employer data leaks during remote work) may prove crucial to securing the employer's position.

At the same time, due to the government reshuffle, work on the regulation of remote work is to continue under the auspices of the Ministry of Development, Labour and Technology. The new regulations on remote work are planned to come into force in March 2021. However, no draft legislation has been formally published yet. There have also been rumours of a revision of the existing proposals. It is therefore worth keeping your finger on the pulse to be prepared for the planned solutions. In particular, the recent significant increase in the number of COVID-19 cases will probably mean that remote working will be with us for longer.