The year 2022 will be marked by changes in labour law. In the near future, we will be faced with, among other changes, the implementation of European directives on care leave and the justification of termination of fixed-term employment contracts, as well as the regulation of remote working and preventative sobriety checks for employees. Employers face the need to adapt existing regulations, but also to introduce completely new ones.
Their implementation will change the institution of care leave, as well as the rules for justifying the termination of fixed-term employment contracts.
The Ministry of Family and Social Policy is working on a draft law amending the Labour Code and certain other laws (template no. UC118) to implement two European directives into the Polish legal system:
- Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ EU. L No. 186, p. 105);
- and Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and caregivers and repealing Council Directive 2010/18/EU (OJ EU. L. No. 188, p. 79).
The deadline to implement both directives is early August 2022.
Directive on transparent and predictable working conditions in the European Union
The first of these directives establishes minimum rights for employees in the European Union. The purpose of the regulation is:
- improving working conditions;
- and ensuring greater transparency and predictability of employment.
The so-called work-life balance directive
The second directive aims to make it easier for employees to maintain the work-life balance and to even out the division of caring responsibilities between men and women. The most important provisions are:
- the introduction of a dimension of parental leave which is not transferable to the other parent;
- flexible working arrangements for employees who are parents or carers.
New rules on parental leave
A major change in the Labour Code in 2022 is to be the new parental leave rules. In order to actively involve both parents in raising the child, an additional non-transferable part of parental leave of up to 9 weeks is being introduced.
This increases the total amount of leave for both parents to 41 weeks (in the case of a single birth), or 43 weeks (in the case of multiple births).
New rules for determining the maternity allowance
The rules for determining the amount of maternity allowance for the period of parental leave will also change. It would be 70% of the benefit assessment basis, unless the employee applies for parental leave no later than 21 days after giving birth – then the maternity benefit for the period of maternity and parental leave would be 81.5% of the benefit assessment basis.
In any case, the father of the child taking the non-transferable 9-week part of the leave is entitled to an allowance of 70% of the base.
New care leave
The ministerial draft also provides for the introduction of care leave of 5 days per calendar year, paid at half salary.
The leave would be intended for the personal care of a close relative or a person remaining in the same household. It is not certain whether the above regulation would replace the current amount of days off for childcare of 2 days or 16 hours, specified by the Article 188 of the Labour Code.
Grounds for termination of the employment contract for an indefinite period
The draft amendments to the Labor Code also include a provision on the employer’s obligation to justify the termination of a fixed-term employment contract.
Until now, the employer only had to justify the termination of an employment contract concluded for an indefinite period of time.
According to the justification of the draft, the aim of the above regulation is to equalise the situation of employees working under fixed-term non-fixed term contracts. It is pointed out that such a solution will cause problems both for employees and employers, at the same time disturbing the separation between fixed-term and non-fixed term contracts.
Other changes included in the proposal
Other provisions of the project include:
- making entitlement to parental leave conditional on the mother having a title to insurance at the date of the birth;
- providing the employee with the right to be employed by another employer at the same time;
- providing the employee with the right to ask the employer for a more favourable form of employment for the employee which guarantees more predictable and safer working conditions;
- granting the employee the right to free training, if such training is necessary for the performance of the work.
In addition, there are changes in the scope of probationary employment contracts, concerning the length of the probationary period – it will depend on the expected duration of employment and the type of work.
Another amendment, on which the polish Parliament is currently working, aims to regulate home office, which, according to the project assumptions, is to replace telework.
Home office will be to be agreed upon at the conclusion of the employment contract or during the employment. The act will also regulate:
- control of home office by the employer;
- health and safety rules;
- definitions and circumstances of home office accidents;
- as well as accounting for the costs of home office.
The act is also intended to grant the employee the right to be on the premises of the workplace on the same terms and conditions as the general workforce and to prohibit discrimination against a remote employee.
The regulation of preventative checks on employees for the presence of alcohol or drugs similar to alcohol in their bodies is a very important legislative step, especially that there is currently no legal basis for such checks in Polish law, and that they often need to be carried out for safety reasons.
Even more changes
In addition to the above-mentioned projects, at the end of January 2022, a parliamentary bill on special solutions for the protection of life and health of citizens during the COVID-19 pandemic was submitted to the Sejm, providing, among other regulations, solutions allowing:
- employers to require employees and persons cooperating under civil law contracts to show the result of a COVID-19 diagnostic test once a week; this is to be free of charge for employees;
- employees to claim compensation for contracting the virus at work from an employer or employee who refused to take the test and infected a colleague.
Is it not too early to implement the changes in the workplaces?
It seems that it is still too early to modify the existing regulations or introduce new ones. At this stage, it is worthwhile to follow the progress of legislative work and possibly map areas that will be worth looking at once the final version of the draft is available.
Paulina Czaja, LL.M., trainee attorney-at-law (PL)