The act implementing the work life balance Directive

Amendment signed by the President

On March 23, 2023, the President signed an amendment to the Labor Code, i.e. the Act of March 9, 2023 amending the Labor Code and other acts (hereinafter: "Amendment") implementing the so-called work-life balance directive (Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, hereinafter: "Work-life balance directive"). As indicated by the Minister of Family and Social Policy, this is a response to the changing trends on the labor market, as well as the introduction of solutions to help working parents reconcile professional and family life.

The main purpose of the Work-Life Balance Directive is to ensure work-life balance and gender equality by supporting women's participation in the labor market, equal distribution of caring responsibilities between men and women, and reducing the gender pay gap. The work-life balance directive therefore establishes minimum requirements related to paternity leave, parental leave and carer's leave, as well as flexible work organization for employees who are parents or carers.

The provisions regulating the above matter will entered into Polish legal system as of April 26, 2023. Below we will present you the most important changes.

Extending the length of parental leave and regulating the so-called "non-transferable part"

The total duration of parental leave for both parents will be extended to 41 weeks in the case of the birth of one child in one birth or to 43 weeks in the case of multiple births (in the current legal status, these are 32 and 34 weeks, respectively). If an employee combines parental leave with work, the length of parental leave will be extended to 82 and 86 weeks, respectively.

Pursuant to the regulation of Art. 182^1a § 4 of the Labor Code, each of the child's parents will have the exclusive right to 9 weeks of parental leave from the above-mentioned length of leave. This right cannot be transferred to the other parent (it will be a non-transferable part of the leave). The purpose of this regulation is to encourage fathers to exercise their right to parental leave.

Parental leave will be granted once or in no more than 5 parts, not later than by the end of the calendar year in which the child turns 6 years old. Therefore, the provisions on the possibility of taking a maximum of 16 weeks' leave at a later date will be repealed.

Parental leave will be granted at the employee's request submitted in paper or electronic form within a period of at least 21 days before the start of being on the leave (in the current legal status, the application can be submitted only in paper form).

Shortening of the period for taking paternity leave

Another change is the shortening of the period for taking paternity leave up to 12 months from the date of birth of the child or until the lapse of 12 months from the entry into force of the decision adjudicating the adoption of the child. The current regulation allows paternity leave to be used within 24 months. The change is related to recital 19 of Directive 2019/1158, which states that paternity leave shall be used during the period of childbirth and be clearly related to this event, and its purpose should be to provide care.

Paternity leave will be granted upon an application submitted in paper or electronic form by an employee-father within a period of not less than 7 days before the start of being on the leave.

Granting the right to carer's leave

It should be emphasized that the applicable provisions of the labor law do not regulate the carer's leave. The amendment will introduce chapter 1a to the Labor Code entitled "Carer leave", according to which the employee will be entitled to a carer's leave of 5 days during a calendar year in order to provide personal care or support to a person who is a family member or lives in the same household who needs personal care or support for serious medical reasons. A son, daughter, mother, father or spouse will be considered a family member. The leave will be granted on days that are working days for the employee, in accordance with the applicable working time schedule.

The leave will be granted at the employee's request submitted in paper or electronic form within a period not shorter than 1 day before the start of being on this leave. In the application, the employee will be required to indicate the name of the person who requires significant care or support for serious medical reasons, the reason for the employee's need to provide personal care or support and the degree of relationship or, in the case of a person who is not a family member, the address of that person's residence.

It should be emphasized that the period of using the carer's leave will be included in the period of employment on which the employee's entitlements depend.

Granting the right to leave from work due to force majeure

The amendment provides for the addition to the Labor Code of Art. 148¹, according to which the employee will be entitled to leave from work for 2 days or 16 hours during the calendar year due to force majeure in urgent family matters caused by illness or accident, if the immediate presence of the employee is necessary. During the period of such leave, the employee retains the right to remuneration, but, in the amount reduced to the half of the remuneration. The employer will be obliged to grant this leave on the basis of an application submitted by the employee no later than on the day of being on this leave.

Changes in the provisions on the protection of employment and overtime

Pursuant to the Amendment, the scope of protection of a pregnant employee, an employee who applied for part of the maternity leave, paternity leave and parental leave will be extended by imposing a prohibition on the employer to prepare for termination or termination without notice of the employment relationship with the above-mentioned persons until the end of the indicated leaves and terminate or terminate the employment relationship with this employee, unless there are reasons justifying the termination of the contract without notice due to their fault and the trade union organization representing the employee has consented to the termination of the employment relationship.

The Amendment will also implement a change regarding the extension of the period in which an employee raising a child may give consent, e.g. for overtime work. The change is aimed at extending the age limit of a child from 4 to 8 years old and thus extending the period during which an employee cannot be commissioned to work: overtime, at night, in the intermittent working time system without consent of an employee, as well as cannot be delegated outside the permanent place of work.

New rules on flexible work organization

By adding art. 188¹, an employee raising a child up to the age of 8 will be entitled to submit an application in paper or electronic form for flexible work organization. This is aimed at increasing the rights of the employee to adjust his work organization to individual needs through the use of flexible working schedules (flexible working time, individual working time schedule, shortened working week, weekend work and interrupted working time) or part-time work.

The application must be submitted at least 21 days before the planned start of using flexible working arrangements. The employer will inform the employee within 7 days from the date of receipt of the application in paper or electronic form that the application has been accepted, the reason for refusing to accept the application or about a different possible date for applying flexible work organization than indicated in the application.

Consequences of delayed implementation of Work-Life Balance Directive’s provisions

Pursuant to the provisions of the Work-Life Balance Directive, Member States were obliged to implement the provisions necessary for its implementation by August 2, 2022. This does not mean, however, that employees who would acquire additional rights if the provisions were implemented on time will be disadvantaged. According to Art. 34 of the Amendment, the legislator decided to grant additional parental leave rights also to those employees who would not be able to take advantage of them due to the delayed implementation of changes to the Labor Code. In practice, this means that parents who had the right or used parental leave in the period from August 2, 2022 will gain the right to parental leave in the amount resulting from the new regulations (i.e. to an additional 9 weeks of leave for the second guardian).

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