Authors: Aneta Ciechowicz-Jaworska and Izabela Szczepańska, Kancelarie Radców Prawnych A. Ciechowicz-Jaworska, B Ślażyński
During and after the COVID 19 outbreak, the way we work changed. In addition to performing their duties at the so-called ‘workplace,’ employees started to provide work remotely.
Due to the fact that previously the issue had not been regulated in the Labor Code, on April 7 parliament introduced new provisions explicitly regulating this type of work.
According to the new regulations:
– remote work is work carried out wholly or partly at a place indicated by the employee and each time at a place agreed with the employer, including the employee’s home address, using means of direct communication at a distance;
– the principles of remote working should be set out in an agreement concluded between the employer and the company trade union, the rules of remote working, an order to perform remote work or in an agreement concluded with the employee;
– at the individual request of an employee, remote work may also be performed on an occasional basis, for a maximum of 24 days in any calendar year;
– remote work may be entrusted to the employee immediately upon conclusion of the employment contract or during employment.
An employer is obliged towards an employee performing remote work, inter alia:
– to provide the necessary materials and tools, including technical equipment and their servicing and maintenance;
– cover the costs of electricity and telecommunication services necessary for the performance of his/her duties;
– cover other costs directly related to the performance of the remote work, if such an obligation is specified in an agreement concluded with the trade union or in regulations issued (or, in the absence of an agreement concluded or regulations issued, in an order issued or an agreement concluded with the employee);
– provide the employee performing the remote work with the training and technical assistance necessary to perform that work.
An important point is that an employer may not refuse remote working to, inter alia, parents raising a child under the age of four, pregnant women and persons caring for a disabled family member, unless it is not possible to perform work duties remotely due to work organization or type of work.
The main problems faced by employers in connection with the introduction of the remote working provisions are the issue of controlling the employee’s working time and calculating the reimbursement of electricity and telecommunication services necessary for the performance of official duties.
Indeed, provisions introducing remote working have not removed the employer’s obligation to control working time in accordance with the relevant legal standards. It appears that in the case of remote working, this may be introduced, for example, by controlling the employee’s logging on to computer equipment.
Regarding the employee’s request to work remotely, the employer is obliged to agree. However, when this is not possible due to the organization or type of work performed by the employee, the employer has the right to refuse remote working. In such a case, the employer will have to inform the employee of the reason for refusing the request either on paper or electronically within seven working days of the request.
In the case of office work, interpretative doubts have arisen as to whether all office work can be performed remotely. Although at first glance it appears to be the case, it should be noted that some of the duties imposed on employees prevent them from providing work exclusively remotely. An example would be the need for employees in government offices to handle so-called petitioners.
As far as the place of performance is concerned, it will always be the place indicated by the employee and agreed with the employer in each case.
The employee is not completely free to choose the place of work, as the legislator has given the employer the right to accept it. As a rule, it will be the employee’s place of residence or other place(s) chosen by the employee and agreed to by the employer.
The place of remote work, whether it be the employee’s residence or another place chosen by the employee and accepted by the employer, will always be mutually agreed upon between the parties to the employment relationship. The parties may agree that the remote work will be carried out at different locations, which the employee will inform the employer of each time. In such a case, it is reasonable to include an appropriate provision in the contract with the employee, where the manner of agreeing the place of work will be regulated in detail.
Attention also needs to be drawn to the issue of “occasional remote working,” which can only be carried out at the request of the employee. In this case, the employer is not obliged to grant the request, but its refusal is subject to an assessment in terms of equal treatment of employees and non-discrimination under Article 18(3a) et seq. of the Labor Code.
The request may be granted in part, but, it seems, then it is necessary for the employee to confirm his intention to perform remote work only for part of the period proposed in the request. Indeed, performing remote work for a shortened period may not be in line with the employee’s interests.
In the case of “occasional remote work” regulated in Article 67 (33) of the Labor Code, we are dealing with the with an appropriate time limit for this form of work, as it may not exceed 24 days per calendar year. The maximum period may be used once or divided into parts, according to the employee’s request and the employer’s consent.
As a result of the exclusion of the application of the provisions listed in § 2, occasional remote work is less formalized and thus more flexible. As a result, the agreement of the parties as to how the remote work is to be carried out becomes more important.