As a result of the COVID-19 pandemic and measures put in place in response to it, businesses around the world – including in Poland – have adopted new innovations in the area of employment. One such innovation is work from home.
A year after the pandemic began, home-office remote work has proven so effective, many people believe it will become a fixture of our post-pandemic future. But remote work raises a host of legal and administrative challenges. This article – based on the 23 February 2021 webinar The Future is Now: The New World of Work in Poland and hosted by CMS legal experts Maciej Andrzejewski and Aleksandra Gajzlerska with CMS Poland – explores the impact of homeworking in Poland for both workers and companies.
Remote work in Poland
Like other countries in Europe, the Polish government has adopted remote working as tool to bolster the economy and help businesses remain in operation during the COVID-19 pandemic.
But different from some countries, in Poland the driving force behind the remote-working relationship during the COVID-19 pandemic is the employer. According to CMS Senior Associate Maciej Andrzejewski, whether or not to initiate home working "is the employer's decision".
Polish companies must decide whether or not it is feasible to conduct their operations via home working. When making this decision, explains CMS's Andrzejewski, "the consent of employees is not required." In short, "a company may instruct an employee to work remotely if that employee has the skills, technical capabilities and accommodation necessary to perform such work," he says.
When ordering workers to shift their operations to their homes, Andrzejewski recommends that companies make this request in writing for the sake of clarity. Employers must ensure that their workers are provided with the tools, materials and logistical support necessary to get the job done. In addition, employers can order their employees to keep a detailed record of the activities they perform while working at home.
As the laws governing remote employment are defined in general terms, Andrzejewski also recommends that companies adopt internal by-laws that are more detailed and include the following:
policies for the remote handling of confidential company information;
a definition of what daily home-working employment schedules should look like for workers including, says Andrzejewski, "the form and frequency of these declarations";
well-defined communication requirements that homeworking employees should follow for proving their presence at their home work stations during business hours; and
details on how employees can be reimbursed for expenses incurred while homeworking.
How formally these arrangements are entrenched will vary from company to company, says Andrzejewski, explaining that some employers adopt these rules as internal by-laws while others communicate them to staff via email as reminders.
Of the two approaches, CMS's Andrzejewski suggests formalising these rules in by-laws so that their existence and importance are clear to all.
Future of remote working in Poland
Currently, remote working is a temporary measure that is part of the state of epidemic threat declared by the Polish government in response to the COVID-19 pandemic. Like everywhere, working from home has been so effective in Poland, the government is planning changes to the Labour Code to include formal remote working regulations.
Because a bill has not yet been drafted, it is not entirely clear what this legislation will look like. But Andrzejewski states that Polish companies have made it clear that they would like the law to cover the following areas:
Regulating health and safety in the home office and making it clear who (i.e. employers or employees) are responsible for what;
Clarifying what home-office costs companies are responsible for and how reimbursements should be conducted;
Clarifying how employee terminations can be conducted in the home-office environment (see the last section of this article for solutions that can used until such a law is passed).
Health and safety
Even without detailed legislation regulating remote work during the pandemic, CMS labour law expert Aleksandra Gajzlerska states that the Polish Labour Code obliges all employers to ensure the health and safety of all their workers. Admittedly, enforcing safety is not easy for employees working from home. Hence, in regard to remote workers, Gajzlerska recommends that Polish employers should ensure that all "preventative and protective" measures on avoiding infection are clearly communicated to employees and followed up by them. Employers should also ensure that employees are fully aware of the risks posed by the pandemic and any risks that may be faced while working remotely.
According to Gajzlerska, companies must follow additional health and safety regulations based on government orders, measures and prohibitions issued specifically in response to the pandemic.
Most of these measures apply to companies that are unable to implement remote working and require employees to perform their duties in the company's facilities (e.g. offices, factories, warehouses). According to these rules:
each employee should wear a mask that covers both nose and mouth, unless the employer decides otherwise;
in an office situation, only one employee should work within a single room unless the employer deems this impossible. In this case, the space between workstations must be at least 1.5 meters;
employees should be given disposable gloves or have access to disinfectants.
As stated above, employers are also responsible for the wellbeing of remote employees, but Gajzlerska states that current laws do not give companies sufficient control over the home-office environment to ensure that standard health-and-safety rules are being followed.
To prevent remote employees from becoming injured on the job, Gajzlerska suggests that companies do the following to mitigate risks in the home-office environment:
provide employees with appropriate tools and materials for their home office (e.g. ergonomically approved chairs, keyboards, screens);
provide logistical support for using and maintaining this equipment;
draft internal policies that set down rules that employees must follow when working remotely, such as the design of home-working stations, taking rest breaks while working in front of a computer and scheduling breaks throughout the work day;
draft internal policies on how to safeguard company secrets and the personal data of individuals;
establish a policy on the format employees must follow when recording remote working hours, and the format and frequency for reporting this information to managers.
To ensure that remote employees are following these rules, companies have the right to conduct inspections of home offices, but CMS's Gajzlerska admits that this rarely happens. Instead, remote employees can prove compliance by submitting photos of their home work stations.
Although Polish companies have been turning to IT solutions for communication, archiving and administration for years, the pandemic has compelled employers to fully embrace digitalisation.
Indeed, scores of companies now rely on digital tools, such as electronic storage of employee records, using e-signing systems to finalise agreements and, if necessary, using online meetings to conduct terminations (see the last section of this article).
Gajzlerska cautions that e-archiving of employment records does not mean making and storing scans of hard-copy documents. In order to be legitimate, proper electronic record systems must be acquired or created. Such systems must effectively manage employee data and offer state-of-the-art protection.
Polish law dictates that some types of contracts (i.e. employment contracts) must be drafted and signed in hard-copy written form. This, however, does not mean that physical meetings need take place to conclude such agreements. According to CMS expert Gajzlerska, an employment agreement can be legally concluded as long as a qualified electronic signature is used. The points below must be followed when executing a qualified electronic signature:
a qualified signing certificate issued by a qualified authority must be obtained. (Note that only certified providers can issue qualified e-signatures. The National Bank of Poland maintains an up-to-date list of these providers);
a private key stored on a cryptographic card must be used in the signing process;
the parties must also use recognised signing software and a special two-way authentication device.
The legal requirements for terminating a worker's employment agreement (e.g. the serving of a termination letter) have not been amended to account for remote work. If companies use online signing software to conclude a termination agreement, the employee could challenge this process in court.
According to CMS labour expert Maciej Andrzejewski, however, there may be a digital answer that minimises the legal risks. This solution entails holding an "online termination meeting" using standard conferencing software such as MS Teams or Skype.
During the meeting, the company should inform the employee of his termination and at the same time send the employee an email with the termination letter, which must be signed with a qualified electronic signature. When the employee opens and reads this digital document, the termination can be considered officially concluded.
At this stage, terms of settlement can be discussed.
Clearly, Polish companies and their legal advisors have devised strategies to fully execute remote work during these difficult times. Furthermore, the remote-working law currently in the pipeline in the Polish parliament could solve many of the challenges companies now face and is expected to make work-from-home a business option for the post-pandemic future.
For more information or advice on implementing work from home and remote working in Poland, contact your CMS client partner or local CMS expert: Maciej Andrzejewski, Senior Associate, CMS Poland and Aleksandra Gajzlerska, Lawyer, CMS Poland.