After lengthy consultations on the introduction of changes to the Labour Code, a draft act amending the Act – Labour Code, the Act on Vocational and Social Rehabilitation and Employment of Persons with Disabilities and the Act on Employment Promotion and Labour Market Institutions was submitted to the Government Legislative Centre. Although the draft was submitted to the Government Legislative Centre in May, and its content was significantly modified in July, the draft is currently at the opinion stage. The bill is primarily a response to the recently widespread form of home office work and the need for increased health protection for workers in relation to COVID-19.
Current regulation of home office
The Labour Code does not regulate the provision of work in the form commonly referred to as home office. The regulations provided for in the Code, referring to telework, although similar to the institution of home office, allow the parties to the employment relationship to use the form of performing work outside the workplace only in a very limited way. Generally speaking, the condition of regularity of performing work in the form of telework significantly limits the usefulness of this form of performing work, excluding the possibility of irregular performance of work outside the workplace.
In addition to teleworking currently provided for in the Labour Code, the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them enabled the parties to the employment relationship to temporarily perform work in a remote mode. Due to the time limitation of the validity of the aforementioned Act – during the state of an epidemic threat or a state of an epidemic and for a period of 3 months after their cancellation, there have been numerous demands for implementation of home office to the Labour Code on a permanent basis, also including the cancellation the state of an epidemic declared in the territory of the Republic of Poland.
Main features of the proposed changes to home office
The essence of the solutions included in the bill amending the Labour Code is primarily the introduction of a legal definition of home office, according to which the term home office should be understood as complete or partial provision of work in a place indicated by the employee and agreed with the employer on each occasion, including the employee’s home address, in particular using means of direct remote communication. The draft therefore introduces the possibility of work in the so-called hybrid mode, i.e. partly stationary in the workplace and partly outside it.
When and how can home office be agreed?
The draft law also provides for the possibility to agree on home office both at the conclusion of the employment relationship and at a later time, during the employment period. In the latter case, it will not be necessary to maintain the written form with regard to the arrangements concerning the place of work, as the employee will be able to submit an electronic request to that effect.
The draft act also regulates the obligation to indicate the principles of providing work in the remote mode in an agreement concluded between the employer and the company trade union organisation or – under certain conditions – in regulations. The latter form of establishing the principles of home office will probably require consulting the content of the principles with employee representatives. In the absence of an agreement or issue of regulations, the rules of home office may also be specified in the order to perform home office or in an individual agreement with the employee.
Possibility of not working from home
In addition, notwithstanding the above, parties to the employment relationship will be given the opportunity to opt out of the form of home office by submitting a binding request – in electronic or paper form – to cease using this form of work provision. It is important to note that the lack of the employee’s consent to home office will not be able to constitute a reason justifying the termination of the employment contract by the employer.
Tools needed to do the job
The obligation of the employer to provide the employee with the tools necessary for the performance of work and to cover the costs directly related to the provision of work outside the workplace, as provided for in the draft act, is a novelty in the Polish legal system and refers primarily to the current, negatively assessed freedom of the employer in this regard.
Health and safety at work
Another interesting solution is the issue of occupational health and safety, under which the employer will be obliged, among other things, to prepare an occupational risk assessment related to home office. The draft act also regulates the issues of accidents at work and circulation of documents, for which the Labour Code requires a written form.
In the event that the employer identifies deficiencies in compliance with health and safety regulations and rules, the employer will be entitled to withdraw permission for home office.
Occasional home office
An interesting regulation introduced in the draft act seems to be also the possibility of occasional home office – at the request of the employee, not exceeding 24 days per year.
Assessment of projected changes
Undoubtedly, the planned changes to the Labour Code regarding the form of home office should be assessed positively. Let us recall that currently the Labour Code does not provide for the form of performing home office at all. It only talks about telework, which – as it was pointed out at the beginning – should be strongly distinguished from home office. Making the possibility of irregular, voluntary and prolonged performance of work outside the workplace more flexible is a response not only to the current needs of the parties to the employment relationship, but also to the drastic increase in technological progress, ensuring to an ever greater extent the possibility of safe and easy work outside the workplace. Besides, the practice of teleworking has shown that such variants of work organisation are currently needed.
Karolina Barałkiewicz-Sokal, attorney-at-law (PL)
Paula Staszak-Urbańska, LL.M., trainee attorney-at-law (PL)