Coronavirus in Poland – legal status and regulations

The coronavirus infection in Poland has created considerable legal challenges for a number of sectors.

KIELTYKA GLADKOWSKI KG Legal has developed measures to assist its Clients, entrepreneurs and employers, in order to minimise the negative effects of COVID-19 outbreak.

The Polish authorities have implemented an emergency act of law as of 2 March 2020 (about coronavirus effects and combating them; so called “Coronavirus Act”) which regulates, among others, two crucial issues from the point of entrepreneurs – employers.

Firstly that the employee who has a child younger than 8 years and demonstrates that he or she is forced to exercise personal care over such a child (namely that there is no other parent taking care of the child, no other member of the family or no other caretaker for the child) has the right to apply for carer’s allowance and have additional 14 days off work to look after the child. For the period when the employee stays at home with the child the standard salary is not paid. There is, instead, paid the carer’s allowance which amounts to 80% of the remuneration. The carer’s allowance is paid from the funds of the Polish Social Insurance Fund. If the employer has registered more than 20 employees, it is standard that the employer makes the payment to the employee and then applies to the Social Insurance Fund for compensation.

Secondly, Coronavirus Act sets forth that in order to counteract COVID-19, the employer may instruct the employee to perform, for a fixed period, work specified in the employment contract, outside the place of its permanent performance (remote work, home office, Article 3 of the Coronavirus Act). The Coronavirus Act does not specify a maximum period for performing remote work. The decision in this regard belongs to the employer – it may be a fixed period, however justified by counteracting COVID-19. Such remote work complies with the general rules of the Polish Labour Law, because the employer is responsible for the state of occupational health and safety in the workplace (207 § 1 of Labour Code), and the employee is obliged to comply with the employer’s binding instructions when being sent to do the remote work. Despite the fact that remote work as a rule requires a consistent declaration of will of both parties (the employee and the employer), based on the Coronavirus Act, such a command from the employer will be binding. This remote work format is recommended if there are doubts on the part of the employer whether he is able to provide safety conditions of work for the employee in the workplace (to minimise the threat of coronavirus infection among employees).

The Coronavirus Act does not provide any special requirements of how the remote work should be performed, hence there apply the general rules under the Polish Labour Code. Under these rules, the employer is obliged to:
1) provide the teleworker with the equipment necessary to perform work in the form of telework,
2) insure the equipment,
3) cover the costs associated with the installation, service, operation and maintenance of equipment,
4) provide the teleworker with technical assistance and necessary training in the use of equipment

– unless the employer and teleworker agree otherwise, in a separate contract.

As for the data protection, the Coronavirus Act does not specify any recommendations in this respect, hence general rules should be applied here. It is generally advised in case of teleworking that the employer should determine and describe the principles of data protection transferred to the teleworkers and should carry out, if necessary, instruction and training in this area. The teleworker should confirm in writing that he has read the data protection principles and is obliged to comply with them. It is advised that the employers should introduce technical and organizational security measures if they decide to work remotely, like procedures specifying the rules for performing remote work, encrypted connections (VPN / SSL), encryption of mobile devices carriers, encryption of internal memories, configuring the mobile device lock screen (pin / password / graphic symbol / other), introduction of a policy regarding the organization of remote work (the use of computers and business telephones, the use of mobile data carriers, the rules for the use of electronic mail).
It is generally not recommended to send the employees to do home office without careful instructions as to the data protection.

The Polish law also allows to introduce the so-called short-time work in relation to the performance of work in harmful or particularly onerous conditions. This solution is allowed based on general Polish Labour Code provisions (Coronavirus Act does not specifically regulate this solution in the form of short-time work). The reduction of working time for employees employed in particularly onerous or particularly harmful health conditions may consist in establishing work breaks included in working time or on lowering the time of work. In case of coronavirus, it may relate, for example, to cashiers, employees having contacts with customers, etc. In order to introduce this solution, there will have to be included special provision in the workplace regulations and it is advisable to obtain the proper recommendations of occupational medicine physician that would confirm that this solution is implemented due to coronavirus epidemy, including specification for what time period and for which employees.

It should be remembered, at the same time, that employees have – pursuant to art. 210 par 1 of the Polish Labour Code – the right to refrain from work if the working conditions do not comply with the provisions (and more broadly – also the conditions) of health and safety and pose a direct threat to health (for the time of refraining from work, the employee retains the right to remuneration under Article 210 par. 3 of the Labour Code). This threat can be not only internal (affecting the condition of a particular employee), but also external (e.g. spreading an infectious disease by another employee, being in a zone of greater risk of infection). Accordingly, the employers in Poland should very diligently follow the required standards of the employees’ safety at work, if no home office is implemented in the workplace.

At the same time, the Polish Ministry of Development has announced that it will develop special provisions with a comprehensive support for entrepreneurs whose activities will be affected by the spread of Covid-19 in Poland. The entry into force of these provisions is predicted for the beginning of April 2020.

The planned aid package is to cover three areas: (i) granting discounts and payment facilities within the public law, (ii) introducing tools to improve financial liquidity for entrepreneurs and (iii) providing protection and support in the labour market targeted at employers who were forced to stop their operations. There are, among other, planned the legal measures to retroactively settle tax losses from 2020 with the income achieved in 2019; public aid to tourism sector, facilitating the split payment mechanism, faster VAT refunds. The Polish authorities also plan that the entrepreneurs affected by delays or lack of deliveries, payment gridlocks or employee absences would be able to count on the help in the form of: postponing the deadline payment of taxes or social security contributions, as well as instalment arrangements, write-offs or other.

KG Legal shall on current basis inform its Clients affected by the coronavirus epidemy in Poland about new regulations and solutions implemented by the Polish authorities.