Will remote work be finally regulated?
The Ministry of Family and Social Policy is working on the bill to standardise the rules of remote work. The draft stipulates that performing remote work will require an agreement with the employer, who will reimburse employees the cost of working outside the office. However, the employer will also be able to control the presence and work of the employees.
Remote work may currently be performed on the basis of Article 3 of the Act of 2 March 2020 on special solutions relating to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them. However, these provisions are valid only during an epidemic and for 3 months after the date of cancellation of an epidemic emergency or an epidemic state.
Since the above regulation is only temporary, the legislator decided to permanently regulate remote work in the Labour Code. In the justification of the draft Act amending the Labour Code, the Act on the professional and social rehabilitation and employment of the disabled persons and the Act on employment promotion and labour market institutions – it was indicated that transferring current regulations on remote work to the Labour Code is not justified. In the opinion of the project initiator, it is necessary to create new standards that will secure the interests of both parties to the employment relationship. As a result, the draft assumes the repeal of the currently binding regulations on teleworking, although its justification indicates that the existing regulations were the basis for work on the target regulations.
Rules need to be defined
The draft provides for a definition of remote work understood as work performed in a place selected by the employee after consultation with the employer, including at the employee’s place of the residence, in particular using means of direct remote communication. The said arrangement may take place at the moment of concluding the agreement or in the course of employment, both in paper and electronic form (which is an exception to the principle expressed in Article 29 § 4 of the Labour Code, that a change to the terms of an employment contract requires a written form).
It was also proposed that, upon the employer’s request remote work, could be performed during a state of emergency, epidemic threat or epidemic and three months after their end, but after the employee’s declaration that he/she has the premises and technical conditions to perform remote work. The employer could withdraw such a request at any time. It is also worth pointing out that the principles of the remote work should result either from an agreement concluded between the employer and the company union organisation or, if such an organisation does not operate in a given employer, from regulations – after consultation with the employee representatives. If there is no such agreement or regulations, the rules of remote work could result from an order of the employer or an agreement with the employee.
The extention of the catalogue of documents that an employee will be able to submit electronically concerns applications which in the current form of the Labour Code require the written form. In this way, an employee will apply for e.g. unpaid leave. The employee will be able to apply jn writing or electronically for the possibility to perform the so-called occasional remote work.
The agreement (regulations) on remote work should specify the groups of employees covered by this form of performance of duties, the principles of covering by the employer the costs related to the performance of remote work and the rules regarding control, health and safety of remote work. There should also be specified rules concerning communication with the employer and the confirmation of the employee’s presence at the work place.
The employer is also obliged to provide the employees with materials and tools necessary to perform remote work, as well as to cover the costs related to their installation and maintenance, electricity and Internet access and other costs – if so agreed in the agreement. The draft also provides the possibility of granting an employee an equivalent for the use of private equipment in remote work – provided that it meets the health and safety requirements referred to in the Labour Code. The amount to be paid should be specified in the agreement. According to the draft act, the costs of remote work could also be reimbursed to the employee in the form of a lump sum. Both the provisions by the employer of equipment for remote work and the reimbursement of costs incurred by the employee, would not constitute taxable income for the employee.
More electronic form
After the adoption of the amendment to the act, the employer will gain the right to inpect the employee at the place and time of performing remote work, while not violating his or her privacy as well as the privacy of other people.. The supervision will also not be allowed to impede the use of home premises in a manner consistent with their intended use.
In addition, the employee will not be able to be discriminated against in any way – either because of performing remote work or because of refusal to perform work in such a form. Before allowing to work remotely, the employer will also be obliged to carry out an occupational risk assessment and, on the basis of its results, to prepare information containing principles and methods of appropriate organisation of the remote work place and health and safety rules. The employee will acknowledge reading this information in writing or electronically. Similarly, the employee will declare that the remote work place designated by him and agreed with the employer meets the health and safety rules. This means that the employee will be responsible for the proper organization of the remote work place, taking into account the requirements of ergonomics.
The extention of the catalogue of documents that an employee will be able to submit in electronic form concerns applications which in the current form of the Labour Code require a written form. In this way, an employee will apply for e.g. unpaid leave.
In writing or electronically, the employee will be able to submit an application for a possibility of performing the so-called occasional remote work. Such a form of performance of duties will be allowed for a maximum of twelve days per calendar year. In the case of occasional remote work, there will be no requirement to conclude an agreement with the employer. On the other hand, the employer will not be able to carry out an inspection at the place of remote work.
The Ministry of Family and Social Policy is currently working on the final shape of the act regulating remote work. The current shape of the draft provides that the described regulations will come into force after three months after the date of cancellation of the state of the epidemics or state of the epidemic threat introduced in connection with SARS-COV-2 infections. However, such a regulation introduces uncertainty – both for employers and employees, because even the approximate date of cancellation of the state of epidemics is not yet known.