Remote work soon to be provided for in the Labour Code
The Parliament has just finished work on the act by which remote work provisions will be introduced to the Labour Code. Soon, these provisions will supersede the relevant provisions of the “Covid Act” and telework-related regulations of the Code.
Presented below are the major assumptions of the new regulations.
Types of remote work
The Labour Code provides for three types of remote work:
- regular remote work on the basis of an agreement (contract) between the employer and the employee. The Parties may agree that work will be done remotely in total or in part (hybrid work). Such an arrangement can be made at the time of conclusion of the employment contract or throughout the term of employment. If remote work is chosen during the effective term of employment, both the employer ad the employee can resign from this form of work by delivering to the other party a binding request for return to work from the company’s office.
- remote work requested by the employer, which will be possible in exceptional situations only: in extraordinary circumstances, epidemics, potential epidemics, and within the period of 3 months after revocation thereof, or if the employer, due to force majeure (circumstances beyond the employer’s control), is temporarily not in a position to ensure safe and healthy conditions of work in the current location. The employer can order remote work only if the employee makes a prior statement in hard copy or electronically that their housing and technical conditions are adequate to perform remote work.
- occasional remote work – an employee working from the company’s office can occasionally apply for working remotely, for no longer in total than 24 days in a calendar year.
Establishing the remote work policy
Each employer wishing to offer the possibility of remote work to their employees should establish the remote work policy to be observed in the enterprise. If there is an internal trade union in the enterprise, the policy should be established in consultations with the trade union(s).
If no consensus is reached with the trade union or if no such union is in operation in the enterprise, the remote work policy should be defined in the remote work regulations adopted by the employer. Prior to issuing the regulations, the employer is obliged to consult the staff.
However, remote work is possible even if no consensus is reached and no remote work policy is established. In this case the rules for remote work should be defined in the remote work order issued by the employer or in the contract concluded with the employee.
The remote work agreement or regulations should be adapted to the specific nature of the employer’s operations and the nature of the work done by employees. The employer should indicate in particular:
- the groups of employees who can do remote work;
- the policy of reimbursement of the costs of remote work, establishing the monetary equivalent for using the employee’s own devices or a lump sum;
- rules of communication between the employer and the employee doing remote work, including the manner of confirming presence at work
- by an employee working remotely;
- rules for inspecting work done by a remote worker;
- rules for inspecting compliance with the occupational safety and health;
- the rules for checking compliance with the information security and protection, including the personal data protection procedures;
- the rules for installing, inventorying, maintaining, updating software and repairing the tools provided to the employee, including technical equipment/devices.
Who can work remotely?
Generally, remote work is a form of flexible working method and its purpose is to enable employees to combine their professional work and private lives. Thus, the employer needs to agree to work done remotely if a request for remote work is submitted by:
- an employee who is a parent of a child holding a disability certificate or a certificate confirming moderate or significant degree of disability,
- a pregnant employee,
- an employee bringing up a child up to 4 years of age,
- an employee providing care over another family member or a person sharing household with them, holding a certificate confirming disability or a significant degree of disability.
It is obvious that certain groups of employees, due to the nature of the work done or the work method, cannot provide work from any place other than the site of the enterprise. In such situations, the employer can reject the request for remote work even if the employee belongs to one of the above groups. The employer will be obliged to inform the employee about the reason for the rejection.
As regards the other groups of employees, as part of preparation for implementation of remote work, the employer should assess which jobs can be done remotely and which cannot and clearly define such jobs in the internal regulations.
Costs of remote work
The Employer will have to provide employees with materials and tools, including technical equipment, necessary to work remotely, as well as installation, repairs and maintenance of the work tools, and will have to cover the necessary resultant costs. Importantly, the employer is also obliged to cover the costs of electricity and telecommunication services required for remote work, and possibly other costs directly related to remote work, and specified in the regulations, agreement or remote work order.
If the employee uses his own tools to work remotely, the employer will be responsible for payment of a monetary equivalent therefor.
The obligation to reimburse the costs of remote work and payment of the equivalent can be replaced with payment of a lump sum in an amount corresponding to the anticipated costs incurred by the employee in connection with the remote work.
Materials and tools provided by the employer, reimbursement the costs of remote work, payment of a monetary equivalent or a lump sum will not constitute the employee’s revenue (will be exempt from personal taxation).
Data protection, job risk assessment and no discrimination
The Act requires that employees who offer the possibility of remote work implement personal data protection procedures and if necessary – provide training in this respect.
Implementation of remote work by the employer should involve preparation of a new job risk assessment for persons who work remotely. The assessment should include in particular the impact of such work on eye sight, musculoskeletal system as well as psychological and social conditions of remote work. Preparation of risk assessment templates for each group of jobs will make complying with this requirement easier.
Employers should also take into account the obligation of equal treatment of all staff, regardless of whether they work remotely, do hybrid work or work from the company’s office. Notably, remote employees should have access to the enterprise and the possibility to use the premises thereof, e.g. devices, etc. as well as to the employer’s social activities (including benefits).
Occasional remote work
Occasional remote work is a special form of remote work. It can be done at the employee’s request approved by the employer. The Act will provide for an annual limit on occasional remote work – 24 days in each calendar year. In principle, occasional remote work will be done at the request of the employee, so the employer will be released from some of the above obligations (e.g. it will not be necessary to conclude an agreement or establish the remote work regulations, or reimburse the employee for the costs of remote work).
At the moment, the act is awaiting the President’s signature. The regulations setting out the new rules of remote work will take effect two months after promulgation of the Act in the Journal of Laws. We shall inform you of the exact date of entry of the new remote work provisions of the Labour Code into force as soon as it is known.
The Act of 1 December 2022 amending the Labour Code and some other acts (hereinafter: The Act).