Remote working is a development that has become very
common in the last two years. The pandemic forced the
legislators to enact extraordinary measures to prevent
the spread of the virus, also with regard to employment
and its forms. There was a need for a set of regulations
that would allow the employer to make a decision to
send employees home and allow them to perform work
away from the employing establishment. That way,
remote work in its current form was instituted, which—
while being an important part of labor law—is not
governed under the labor code.
The concept of remote work originated in the Act on
Special Arrangements for Prevention, Counteracting,
and Combating COVID-19, Other Infectious Diseases
and Crisis Situations Caused Thereby of 2 March 2020
(hereinafter, the “Covid Law”). The remote work order
is laid down as early as in Article 3 of the Covid Law.
Under the provision, during the state of epidemic threat
or pandemic and for 3 months after it has been lifted,
the employer may order an employee to perform work
set forth under their employment contract over a
definite term away from the place where it is
permanently performed. Over the last two years, a
large number of employers have availed themselves of
the ability to have their employees perform work
remotely. Is it possible, therefore, that the concept will
remain part of Polish law even after the end of the
pandemic?
For this to happen, remote work would have to be
incorporated into the Labor Code. The legislators
voiced plans to do so as early as in 2020. Ultimately,
remote working would replace teleworking in the Labor
Code. Telework and remote work, despite being a very
similar concept at first glance, currently differ in several
respects. Telework is voluntary; the employee is
required to perform telework and failure to give their
consent cannot provide the grounds for termination of
the employment contract. On the other hand, an order to perform work remotely is deemed to be the
employer’s official order, and consequently failure to
comply with it may result in disciplinary sanctions being
imposed upon the employee. In principle, telework is
permanent in nature, while remote work (as a means of
fighting the spread of COVID-19) is merely temporary,
and the employee works remotely over a specified
period of time only. These are the two basic
differences, which ultimately are to be eliminated and
both concepts integrated in the Labor Code as remote
work.
In the event of incorporation of remote work into the
Labor Code, the legislators will also have to provide
for the aspects that while not part of the Covid Law
have already been laid down for telework. This
includes the issue of providing the employee with
suitable equipment to perform remote work, insurance
of such equipment, or control over its use. Since these
issues were not significant in the context of
counteracting COVID-19, the legislators decided not to
address them. However, if remote working is included
in the Labor Code as part of labor law, these provisions
will have to be enacted.
The remote working regulations are a good example
of provisions that became necessary as a result of the
pandemic but stand a very good chance of remaining
part of Polish law even after the pandemic is over. A
great many employers decided to take advantage of
the remote work arrangement, and the solution has
earned nothing but praise in the vast majority of cases,
both among employers and employees. While the date
of incorporating remote work into the Labor Code is not
yet known, it seems virtually a foregone conclusion that
it will happen, with remote work becoming a useful tool
of the Polish labor law.
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal
developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to 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.