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.