Upcoming changes in labour law, i.e. the work-life balance directive

Until the 2nd of August, 2022, the Polish legislator is obliged to implement the so-called Work-life balce directive to the Polish legal system by adopting an act amending, inter alia, the Labour Code. As at the date of this article, the draft act implementing the requirements of the Work-life balance directive has not been published on the website of the Government Legislation Centre. Due to the deadline for the changes to come into force in the Work-life balance directive, its publication should be expected in the first half of 2022.

The main goal of the introduced changes is to help professionally active parents combine their professional duties with family obligations. Additionally, it should be noted that the EU legislator noticed that in most cases it is the women who bears the burden of performing unpaid family and caring responsibilities, such as caring for a child, or for sick and dependent relatives. This state of affairs in turn has a "negative impact on the employment of women and causes some of them to withdraw from the labour market altogether". The Work-life balance directive aims to counteract the phenomenon of limiting the economic activity of women and the inequality "between women and men in terms of Work-life balance policy".

It is worth emphasizing that the upcoming changes discussed in this article apply only to employees within the meaning of the Code of Law, i.e. persons employed under an employment relationship, regardless of whether the relationship was established on the basis of an employment contract, appointment, choice of appointment or a cooperative employment contract.

Below we present a list of the most important upcoming changes in the labour law, which will turn out to be crucial for both employees and employers. The regulation of the so-called paternity leave due to the fact that the Labour Code provides for more favourable provisions. For this reason, it should be expected that in this respect, the implementation of the Work-life balance directive will not change the provisions currently in force.

1.   Time off from work due to force majeure

Article 7 of the Work-life balance directive obliges EU Member States, including Poland, to introduce measures necessary to ensure that every employee has the right to time off from work due to force majeure, including urgent family matters caused by illness or accident. This entitlement should only apply to cases where the immediate presence of the worker in question is necessary due to the sickness or accident of the family member.

However, the EU legislator allowed EU Member States to limit the employee's right to time off from work due to force majeure to a certain amount of time for a given year or for a specific case of force majeure.

It should be remembered that on the basis of the current regulations, the catalog of reasons justifying the employee's absence from work is specified in §1 of the ordinance on the method of justifying absenteeism and granting employees leave from work. According to that provision, they are:

events and circumstances specified in the provisions of the labour law, which prevent an employee from appearing for work and providing it (in particular, various types of leave from work, e.g. to look for a job for an employee during the notice period provided for in Article 37 of the Labour Code, in connection with improving the qualifications of the employee at the initiative of the employer or with his consent pursuant to Article 1031 §2 point 2 of the Labour Code, etc.), and

other cases of inability to perform work indicated by the employee and recognized by the employer as justifying the absence from work, which could also include absences from work due to force majeure in urgent family matters caused by illness or accident.

As a result of the implementation of the Work-life balance directive, force majeure in urgent family matters caused by illness or accident, preventing the employee from showing up for work, will become an additional reason justifying the employee's absence from work.

It is also worth adding that the Work-life balance directive does not indicate whether the employee will receive a salary or other benefit for the period in which the employee is not working due to force majeure. This issue will be resolved by the Polish legislator.

2.   Flexible work organization

Another solution aimed at making it easier for employees to maintain a balance between work and private life is introduced by Art. 9 of the Work-life balance directive. The aforementioned provision obliges EU Member States to ensure that employees with children aged up to 8 years old and their carers have the right to apply to the employer for flexible work organization in order to provide care.

Flexible work organization, in accordance with Art. 3 sec. (1) (f) of the Work-life balance directive, means "the possibility for an employee to adjust his work organization, including the use of remote work, flexible working time schedules or reducing the working time".

The employer, on the other hand, will be obliged to consider the employee's application within a reasonable time, taking into account both the needs of the employer and the employee. In case of refusal, the employer will have to additionally justify his position.

It is worth noting that the EU legislator has granted the Member States the right to make the granting of the employee's right to apply for flexible work organization conditional on the period of employment with a given employer or length of service, which cannot exceed 6 months.

As we read in recital 34 of the Work-life balance directive, the possibility of flexible organization of an employee's work in the period after the appearance of a child in his or her family is to encourage such employees to remain in the labour market and to adapt their work to their duties related to taking care of the child.

It should also be emphasized that, in accordance with the Work-life balance directive, EU Member States will also be obliged to introduce measures aimed at:

prohibiting less favourable treatment of employees who have applied for flexible work organization,

prohibiting the dismissal and any preparation for dismissal of employees due to applying for flexible work organization,

protecting employees from any negative treatment by the employer or negative consequences resulting from an internal complaint or court proceedings in order to enforce compliance with the requirements of the Work-life balance directive.

Taking into account that the draft act implementing the Work-life balance directive had not yet been published by the date of this article, it is difficult to say to what extent the analysed provisions will revolutionize the way parents perform work. In this respect, a lot will depend on the Polish legislator, who may repeat the provisions of the Work-life balance directive and grant the employee only the right to submit an application for flexible working conditions without the employer's obligation to consider such a request. However, taking into account the content of the bill, which was to introduce remote work to the Labour Code, it can also be expected that the legislator will directly indicate the cases in which the employer will be obliged to comply with the employee's request for flexible working conditions.

3.   Childcare leave

Article 6 of the Work-life balance directive imposes an obligation on EU Member States to introduce measures that will ensure that every employee is entitled to a care leave of 5 working days a year. Nursing leave is to be understood as leave for employees which enables the provision of personal care or support to a relative or person living with the worker in the same household who require substantial care or support for serious medical reasons (Article 3 (1) (c) of the Work-life balance directive).

It is worth noting that the EU legislator authorized the EU Member States to:

determining the details of the scope and conditions of the carer's leave,

introducing a requirement to present an appropriate medical certificate on the need to provide care or support for serious medical reasons,

carers' leave granted on the basis of a reference period other than one year, per person in need of care or support, or on a specific case.

It should be emphasized that the Work-life balance directive does not indicate whether the carers' leave is to be paid or unpaid leave. If, on the other hand, employees receive certain cash benefits in connection with the care of a relative or a resident, it is also not known whose funds will be financed. The above issues will be regulated only by the Polish legislator in the act implementing the Work-life balance directive into the Polish legal system.

As in the case of flexible work organization, the EU legislator obliged the EU Member States to introduce anti-discrimination measures for employees taking care leave.

The solutions proposed in the Work-life balance directive constitute an extension of the provisions regulated in art. 188 of the Labour Code of the institution of exemption from work for an employee raising a child up to 14 years of age for 16 hours or 2 days per calendar year, with the right to remuneration.

4.   Parental leave

Another institution regulated in the Work-life balance directive is parental leave (Article 5 of the Work-life balance directive). The EU legislator obliged the Member States to provide each employee with an individual right to parental leave of 4 months. Parental leave should be used by employees-parents up to the age specified by the national legislator, up to a maximum of 8 years. Importantly, Member States are required to ensure that at least 2 months of parental leave cannot be transferred to the other parent. Granting an employee the right to parental leave may depend on an earlier period of employment or length of service, and these periods may not exceed 1 year.

Pursuant to Art. 8 sec. 3 of the Work-life balance directive, parental leave is paid leave, but as far as the amount of remuneration or benefit received by parents is concerned, it was only indicated that it must be "set in such a way as to facilitate the use of parental leave by both parents".

As in the case of flexible work organization or care leave, the EU legislator obliged the EU Member States to introduce anti-discrimination measures for employees taking parental leave.

Please note that the current solutions existing in the Labour Code are generally more favourable than those resulting from the Work-life balance directive. Pursuant to Polish regulations, an employee who gave birth to a child is entitled to 20 weeks of maternity leave, while the first 14 weeks after giving birth the employee should use personally, and the remaining period of maternity leave may be transferred to the child's father. After the end of the maternity leave, each parent may take advantage of 32 weeks of parental leave (the indicated amount of parental leave is available to both parents jointly).

Under the current labour law, apart from the first fourteen weeks of maternity leave after childbirth, parents may decide which of them will take the remainder of the maternity leave and parental leave. With the implementation of the directive, each parent will be entitled to a 2-month holiday, regardless of the other parent. Taking into account the fact that it is usually women who assume the burden of providing care for a small child, as a result of the implementation of the Work-life balance directive, fathers will gain the right to an inalienable 2-month parental leave.

Granting such leave will be associated with high costs, and it is not yet clear how it will be financed. In addition, at this stage, it is not possible to indicate whether the implementation of the Work-life balance directive will ultimately shorten the period of parental leave of one of the parents by aa 2-month period, which - according to the assumptions of the Work-life balance directive - should be used by the other parent of the child. Such a perspective seems possible especially when we take into account that the periods of maternity and parental leave in Poland are very long compared to other European countries.

Contact us and find out how you can prepare yourself and your workplace for the implementation of the Work-life balance directive.

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• PKF Alert - Upcoming changes in labour law.pdf [PDF]