Act amending the Act - Labor Code and some other acts signed by the President (remote work)

On January 27^th, 2023, the polish President signed the Act of December 1^st, 2022 amending the Labor Code and certain other acts (hereinafter: the "Act"), introducing significant changes to the Polish legislative system, including, among others, regulating remote work as a permanent solution. The provisions in this regard come into force on 7 April this year.

Remote work as a permanent solution

Pursuant to the Act, remote work may be performed in whole or in part in a place indicated by the employee and agreed with the employer each time, including at the employee's home address, in particular using means of direct remote communication. The above means that work can be performed full-time as remote work or only partially as remote work (under the so-called hybrid form), e.g., 3 days a week at the employer's headquarters and 2 days at the employee's place of residence.

Pursuant to the Act, determining the place of remote work, regardless of whether it will be at the employee's residence address or another place chosen by him, will require mutual agreement between the parties to the employment contract. Such an agreement may take place when concluding an employment contract or during employment. In the latter situation, a change in the form of work during the period of employment will be possible at the initiative of the employer or at the request of the employee submitted in paper or electronic form.

The above means that neither the employer nor the employee will be able to impose the location of remote work on the other party.

In accordance with the adopted regulations, the employee's request to perform remote work will, as a rule, not be binding on the employer. However, the legislator has provided for exceptions, according to which the employer is obliged to take into account the application, in particular: (i) pregnant employees, (ii) employees raising a child up to the age of 4 or (iii) employees taking care of another member of the immediate family or another person remaining in the same household, with a certificate of disability or a certificate of severe disability. However, it should be emphasized that the employer will be entitled to refuse to grant consent to perform remote work to the above-mentioned employees if it is impossible to perform it due to the organization or type of work. The employer will be obliged to inform the employee about the reason for the refusal within 7 working days from the date of submission of the application.

In addition, remote work will be possible at the employer's request:

• during the state of emergency, state of epidemic threat or state of epidemic and within 3 months after their cancellation, or
• during the period in which the employer's provision of safe and hygienic working conditions at the employee's current workplace is temporarily impossible due to force majeure,

if the employee submits a statement immediately before issuing the order that he has the premises and technical conditions to perform remote work.

An order to perform remote work by the employer may therefore be issued only for objective reasons independent of the employer and only for a specified period of time. The above order may be withdrawn at any time, with at least two days' notice.

Rules for performing remote work

The rules for remote work will be defined in:

• an agreement concluded between the employer and the company's trade union organization, or
• regulations – if there is no company trade union at the employer (in this case - after consultation with employee representatives) or if no agreement is concluded with the company trade union at the employer.

Remote work will also be allowed if no agreement is concluded or the regulations referred to above are not issued. Then the rules for remote work will be specified in the employer's instruction or in the agreement concluded with the employee.

Importantly, if remote work is agreed upon during employment, either party to the employment contract may submit a binding request to cease remote work and restore the previous conditions of work within no more than 30 days from the date of receipt of the request. However, it should be pointed out that this entitlement does not apply to an employee who agreed with the employer to work remotely when concluding the contract. Therefore, the legislator did not regulate the mode in which the change in the form of stationary work would take place for this group of employees, nor did it impose an obligation on the employer to enable the employee to perform work at the employer's seat - the omission of this issue raises doubts in the context of Art. 183a of the Labor Code, the principle of non-discrimination.

The newly introduced regulations oblige the employer to:

• providing employees performing remote work with appropriate materials and work tools, as well as ensuring their installation, service or maintenance, or covering the costs related to the installation, service and maintenance of work tools;
• covering the costs of electricity and telecommunications services necessary to perform work and other costs directly related to the performance of remote work, with the reservation that the reimbursement of other costs will be specified in the document regulating the conditions of remote work;
• provide the employee with appropriate training and technical support necessary to perform remote work;
• defining the procedure for the protection of personal data.

If the employee uses private work tools, the employer will additionally be required to pay a cash equivalent in the amount agreed with the employer.

Covering the above-mentioned costs or paying the equivalent may alternatively take the form of a lump sum paid to the employee. The amount of the lump sum should correspond to the expected costs incurred by the employee in connection with the performance of remote work.

The content of the Art. 6725 of the Labor Code indicates that the coverage of costs related to the performance of remote work by an employee, the payment of a cash equivalent or a lump sum will not constitute income within the meaning of the Act of 26 July 1991 on personal income tax.

The Act also provides the employer with the right to control the performance of duties by the employee in the form of remote work, e.g. in the field of occupational health and safety or compliance with information security and protection requirements, including personal data protection procedures. It is worth emphasizing that the performance of control activities must not violate the privacy of the employee or other persons, and must not hinder the use of home premises in a manner consistent with their intended use. In the event of deficiencies, the employer obliges the employee to remove the identified deficiencies within the indicated period or withdraws consent to perform remote work.

In addition, the Act allows for remote work also occasionally. The employee will have the right to perform such work for a maximum of 24 days in a calendar year on the basis of a submitted application. Occasional remote work will apply in special circumstances and due to its incidental nature, the employer does not have to fulfil certain obligations, in particular, he will not be obliged to determine the rules of its performance in a separate document or will not be obliged to pay the equivalent and a lump sum in the event of failure to provide materials, tools or devices necessary to perform remote work.

Importantly, an employee may not be discriminated against in any way due to remote work, as well as due to refusal to perform such work, in particular, he may not be treated less favourably in terms of establishing and terminating an employment relationship, terms of employment or promotion.

The consequence of the introduction of remote work will be the abandonment of legal solutions regulating telework. It should be noted that pursuant to Art. 18 of the Act, the conditions for the use of telework specified in the agreement or regulations, as well as the performance of work in the form of telework based on the employee's request, may be applied for no longer than 6 months from the date of entry into force of the amendments repealing the provisions on telework, i.e. until October 7 2023.