In April 2024, a year passed since the supplementation of the work-life balance directive to the Polish Labour Code Act of 26 June 1974 (i.e. Journal of Laws of 2023, item 1465; hereinafter: ,,Labour Code”). One of the key elements of the changes to the labour legislation was the introduction of carer’s leave and force majeure leave. It is therefore worth summarising how these regulations function in practice and what are the most common doubts of employers related to their application.
Carer’s leave – what should we know?
Carer’s leave is an entitlement for employees that allows them to take up to five days off per calendar year to provide personal care or support to a family member or person living in the same household who requires care or support for serious health reasons.
Carer’s leave can be taken by all employees with an employment contract. It is granted irrespective of length of service, type of contract or full-time equivalent.
It is worth noting that carer’s leave is unpaid, and its duration is not deducted from the employee’s pool of annual leave days. The period spent on carer’s leave counts as part of the period of employment.
What about leave of absence due to force majeure?
According to Article 1481 of the Polish Labour Code, an employee is entitled to force majeure leave for urgent family matters caused by illness or accident if the employee’s immediate presence is necessary. The dimension of the leave is 2 days or 16 hours, for which the employee receives 50% of the salary.
Can an employer refuse to grant carer’s leave and force majeure leave?
Due to the fact that the occurrence of force majeure is unpredictable, the Polish legislator has regulated the principle in the legislation that an employee may report the need to take leave due to force majeure even on the day such leave is taken, and the employer is obliged to grant it.
When it comes to the granting of carer’s leave, the Polish legislator places stricter requirements on the employee – the application for it should be made no less than 1 day before the start of the leave and should indicate:
- the name of the person who requires the employee’s care or support,
- the reason for the need for personal care or support,
- in the case of a family member, a demonstration of the degree of relationship to the employee,
- in the case of a person who is not a family member, an indication of the address of residence of that person.
Although in the case of carer’s leave, the prerequisites for entitlement are much more numerous than in the case of force majeure, because the circle of family members is narrowed by the Polish legislator and the need for care or support must be due to serious medical reasons, in practice – given the lack of definition of these concepts in the Polish Labour Code and the lack of power of the employer to request documentation confirming the state of health of the persons requiring support or care, the submission of a complete application by the employee with compliance with the statutory deadline makes it impossible for the employer to refuse the employee to grant days off work.
Prerequisites for carer’s leave not so easy to verify
As already mentioned, it has become a major challenge for employers to verify the prerequisites for carer’s leave, i.e. the degree of relationship and the state of health of the family member or cohabitant justifying the employee’s taking such leave.
Even though there is no power on the part of the employer to require the production of documents confirming the employee’s entitlement to carer’s leave, may the employer require the production of those documents even if only for inspection?
After all, the mere inclusion in the application for carer’s leave of data which follows directly from the Polish Labour Code (name of the person who requires the employee’s care, degree of relationship to the employee or address) requires the processing of personal data of third parties by the employer.
However, it is worth highlighting that the consent of the person whose data will be processed is not necessary for the processing of such data by the employer, which follows directly from Article 6(1)(C) and Article 9(2)(B) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation; OJ. EU. L. of 2016. No. 119, p. 1 as amended; hereinafter: ,,GDPR”).
According to Article 5(1)(C) of the GDPR, the processing of personal data should be limited to the minimum necessary and be appropriate to the purpose for which it is processed. It follows indirectly from these provisions that the employer is not entitled to request the employee to produce – even for inspection – documents justifying the serious health condition of a family member or cohabitant.
The employer should limit itself only to accepting a request with the content containing the data listed in the Polish Labour Code.
Leave of absence due to force majeure – documents that the employer may require
It should be noted that neither the Polish Labour Code nor the Regulation of the Minister of Labour and Social Policy of 15 May 1996 on the manner of justifying absences from work and granting exemptions from work to employees (i.e. Journal of Laws of 2014, item 1632) contains a catalogue of documents that may be requested by the employer for the purpose of granting an employee exemption from work due to force majeure.
Therefore, it should be assumed that the request for exemption should be limited only to the minimum data that will allow the employer to verify who the request concerns and for what reason the exemption should be granted. Such data may include:
- the name of the employee,
- the justification of the circumstances involved, without describing them in detail (i.e. force majeure, urgent family matters caused by illness and accident, the need for the employee’s immediate presence).
Summary
One year after the work-life balance directive came into force, the changes in Polish labour law can be positively assessed in practice. The introduction of carer’s leave and force majeure leave is an expression of care for emergencies that may occur in an employee’s life.
However, employers should bear in mind that the law significantly restricts them when it comes to the processing of employees’ personal data, and abuse of the law, can lead to far-reaching legal consequences.
Should you have any doubts, our Labour Law Team is always at your disposal!
Author:
Zofia Kwiatkowska, Lawyer
