The coronavirus pandemic has demonstrated the effectiveness of remote
working. It showed that this way of performing work can be accepted in many
industries. There are even opinions that due to the fact that the pandemic has
revealed the efficiency of remote working, there will be no return to work which
we knew before the epidemic, and thus many companies will limit their rental
needs by switching – permanently – to a greater extent to remote working or
telecommuting. Although it is difficult for lawyers to argue with such claims, it
should be noted that the currently observed phenomenon of mass transition to
the remote work system takes place under special legal conditions arising from
the Act of March 2, 2020 on special solutions related to prevention, counteraction
and eradication of COVID-19, other contagious diseases and crisis situations
caused by them. These provisions are temporary, and after their expiry, remote
work will be a subject to legal regulations, making permanent work organization
as a remote work will not be as simple as it is today. As a consequence, it may
turn out that the real impact of the currently observed phenomenon (trend?) on
the office real estate market will not be that significant.
In accordance with art. 3 of the aforementioned Act, the employer may order the
employee to perform, for a fixed period, work specified in the employment
contract, outside the place of its permanent performance (remote working). This
solution was introduced only for the time of pandemic. Under normal
circumstances, the organization of work in a remote work system is not a rule. In
principle, the employee performs work in the workplace and only from time to
time the employer allows him to work remotely, for example as home office. This
way of performing work is actually not regulated by the provisions of the Labor
Code. The only related legal institution is performing work in the form of
telecommuting which, however, does not coincide with the common
understanding of remote working. In the event of an employee providing work in
a remote form, the general provisions on employment relationship shall apply,
and the parties shall each time determine the terms and conditions under which
they will work remotely.
Alongside to the commonly mentioned benefits of introducing work organization
as a remote work, i.e. the ability to flexibly perform duties by an employee or
saving time usually spent by an employee on commuting to the office, in practice
there are also many problems and doubts. For example, remote working is
associated with problems of working time control, because in the case of remote
working, the employer does not have a statutory legal basis to carry out the
inspections at the place of work by the employee. In practice, an important
problem is also securing documentation and confidential information, necessary
to perform work.
Another, more formal option for organizing work in a remote form, is
telecommuting. It is a form of work performance which is formally and in detail
laid down in the Labor Code. In accordance with art. 675 of the Labor Code, work
can be performed regularly outside the workplace, using electronic means of
communication within the meaning of the provisions on the provision of
electronic services (telecommuting), and a telecommuter provides the employer
with work results, in particular via electronic means of communication. However,
it should be remembered that on the employer who decides to entrust an
employee work in the form of telecommuting, the legislator imposes a number of
obligations. When introducing telecommuting in a company, the employer must
include this information in internal regulations, such as workplace rules and
regulations or a collective labor agreement. The employer must adapt internal
legislation to the newly introduced employment rules. As indicated in art. 6711 of
the Labor Code, the employer is also obliged to provide a telecommuter with
equipment necessary for telecommuting, equipment insurance, coverage of costs
related to its installation, service, operation, maintenance, providing technical
assistance and necessary training in the use of this equipment, etc. It is also
practiced to conclude a separate contract with a telecommuter, which regulates
the scope of insurance of the employer’s equipment necessary for the
performance of work, the manner and form of control of work performance,
compliance with health and safety rules, principles of information security
provided to the employee and similar issues. The employer has the right to
control the work performed by the telecommuter. It should be noted, however,
that if the telecommuter provides work in the place of residence, the employer
should obtain prior written consent from the employee to carry out the control.
Considering the above, the employer entrusting the employee with work in the
telecommuting system will have to take into account not only a large number of
formalities, but also the need to incur specific, often high costs of specialistic
equipment, software or other work tools. Also in this case, there will be problems
with ensuring confidentiality, as well as security of documentation and
information entrusted to the employee in connection with her/his work.
Although, it seems that in such extraordinary situation of a pandemic and in the
light of the so-called special purpose act, remote work turned out to be a good
solution that in most cases maintained a relatively normal functioning of
companies, in the long run the indicated requirements, and above all the costs
associated with their fulfillment may mean that switching to remote work mode,
including telecommuting, will not be a phenomenon as widespread as it is
currently believed and that this factor will not have a significant impact on
reducing the demand for office space.
FOR FURTHER INFORMATION PLEASE CONTACT
Konrad Marciniuk PhD DSc
Partner, Legal Counsel
T: +48 22 447 43 00
M: +48 601 674 424
E: marciniuk@millercanfield.com
Marta Pałyga
Associate
T: +48 22 447 43 00
E: palyga@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the
facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to
draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course
of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The
services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
legislation or other legal development to the particular facts can be verified.