Q: When should the parties of an employment contract make arrangements for an employee to perform remote work?

Andżelika Madej-Kowal: According to the bill, the agreement between the parties of the employment contract regarding the employee's performance of remote work may take place either at the conclusion of the employment contract or during the course of employment, in the latter case at the initiative of the employer or at the request of the employee submitted in paper or electronic form.

Q: Will the arrangements between the parties of the employment contract during the course of employment to perform remote work require an amendment to the employment contract in writing?

A: The bill stipulates that, in the case of an agreement to perform remote work made in the course of employment, the article of the Labor Code, according to which a change in the terms of the employment contract requires written form, shall not apply. In our opinion, this should be interpreted to mean that a change in the terms of the employment contract caused by the above arrangements will not require a written form.

Q: Is the employer bound by the employee's request to perform remote work?

In some cases. e.g. a pregnant employee or an employee raising a child up to the age of 4, the employer will be obliged to grant the employee's request to perform remote work, unless it is not possible to perform remote work due to the organization of work or the type of work performed by the employee. The employer shall inform the employee of the reason for refusing to grant the request in paper or electronic form.

Q: Can remote work be done at the request of the employer?

The bill stipulates that remote work may be performed at the order (instruction) of the employer if the following circumstances exist:

• during a state of emergency, state of epidemic or state of epidemic emergency and for a period of three months after their cancellation

• during the period when it is temporarily impossible for the employer to provide safe and hygienic working conditions at the employee's current place of work due to force majeure — if the employee submits immediately before the order is issued a statement in paper or electronic form that they have the premises and technical conditions for performing remote work. If the employee's premises and technical conditions change making it impossible to continue working remotely, the employee will be obliged to inform the employer immediately. In such a case the employer will immediately revoke the order to perform remote work.

Q: The employer will also be able to revoke the remote work order with at least one day's notice. Should the employer regulate the rules for performing remote work, and if so, what should be included in such "regulations"?

According to the bill, remote work should be performed according to the rules for performing remote work set forth in, among others:

1. in an agreement between the employer and the company trade union and in the case where the employer has more than one company trade union organizations, in an agreement between the employer and these organizations,

2. in the regulations, after consultation with employee representatives selected in accordance with the procedure adopted at the employer’s (if there are no company trade unions at the employer’s),

3. respectively, in the order (instruction) to perform remote work or in the agreement concluded with the employee, when the agreement referred to in item 1 above has not been concluded or the regulations referred to in item 2 above have not been issued.

In addition, the above regulations should specify the following:

• the group or groups of employees who may be covered by remote work (this does not apply to #3 above);

• the rules for covering the costs of remote work by the employer;

• the rules for determining the cash equivalent or lump sum;

• the rules of communication between the employer and the employee performing remote work, including the method of confirming the presence of the employee performing remote work at the workplace;

• the principles of control of the performance of work by an employee performing remote work;

• the principles of control in the field of occupational health and safety;

• the principles of control of compliance with security and information protection requirements, including procedures for the protection of personal data;

• the principles of installation, inventory, maintenance, software updates and servicing of work tools entrusted to the employee, including technical equipment.

Q: What should an employer provide for an employee doing remote work?

According to the bill, the employer is obliged to:

1. provide the employee performing remote work with the materials and work tools, including technical devices, necessary to perform remote work;

2. provide the installation, servicing, operation, maintenance of work tools, including technical devices, necessary for the performance of remote work, or cover the necessary costs associated with the installation, servicing, operation and maintenance of work tools, including technical devices, necessary for the performance of remote work, and cover the costs of electricity and telecommunications services necessary for the performance of remote work;

3. cover costs other than those specified in #2 above directly related to the performance of remote work, if the reimbursement of such costs is specified in an agreement with the unions in the remote work regulations, in the remote work order (instruction) of the employer or in an agreement with the employee;

4. provide the employee performing remote work with the training and technical assistance necessary to perform such work.

The employer and the employee may establish rules for the use by an employee performing remote work of work materials and tools, including technical equipment, necessary for the performance of remote work, not provided by the employer. In such a case, an employee performing remote work using private work materials and tools shall be entitled to a cash allowance in the amount agreed with the employer.

The draft also stipulates that the obligation to cover the aforementioned costs or to pay the above equivalent, may be replaced by the obligation to pay a lump sum, the amount of which corresponds to the expected costs incurred by the employee in connection with remote work.

In determining the amount of the above equivalent or lump sum, the norms of consumption of materials and work tools, including technical equipment, their documented market prices and the amount of material used for the employer's needs and the market prices of this material, as well as the norms of consumption of electricity and the cost of telecommunications services should be taken into account in particular.

Q: What is the planned effective date of remote working regulations according to the bill?

According to the bill, the "amendment" to the Labor Code regarding remote work will enter into force within 14 days of its promulgation. At the same time, as of the date of entry into force of these planned regulations, the previous provision relating to remote work contained in the Law of March 2, 2020, on Special Solutions for the Prevention, Prevention and Control of Covid-19, Other Communicable Diseases and Emergencies Caused by them will be probably repealed.

Family Business Initiative Association (IFR) is a Warsaw-based alliance that groups entrepreneurs who own family businesses, as well as experts and scientists who support this community.

Andżelika Madej-Kowal, an IFR expert and attorney in the law firm Brillaw by Mikulski & Partners, deals with labor law, among others.