Poland introduces rules on remote working and sobriety testing

The amendment to the Labour Code, which introduces remote working and sobriety control into the Polish legal order, was passed and published in the Journal of Laws on 6 February 2023. The new regulations will enter into force in two stages. 

First, the regulations on sobriety checks will become effective - this will happen within 14 days from the date of publication of the Act i.e., from 21 February 2023.

In the second stage, in two months after the announcement of the new legislation i.e., from 7 April 2023, regulations on remote working will come into force.

Below you will find answers to the most frequently asked questions that arise in connection with the new regulations. We are also ready to support you in the process of implementing the new regulations in your organisation and in drafting all the necessary documentation.

REMOTE WORKING

What is remote working?

Remote work means work performed entirely or partially at a location indicated by the employee (including at the employee's home address) and agreed with the employer on a case-by-case basis using various means of direct communication at a distance (e.g., e-mail, instant messaging, telephone). Under the new regulations, remote working will include both working fully remotely (current teleworking) and working remotely only partially (e.g., 4 days a week). 

When the arrangements on switching to remote working can be made? 

Arrangements with the employee on remote working can be made:

• when the employment contract in concluded -  in such a case the terms of remote working will be set in the employment contract;

or 

• in the course of employment (at the employer's initiative or at the employee's request) - in such a case the remote working agreement will replace the existing terms and conditions of the employment relationship.

How to introduce remote working in an organisation?

The answer to this question depends on whether the employer wants to introduce remote working immediately for a larger group of employees, making it a standard form of collaboration, or whether remote working is to be an exception, with only some employees working remotely.

In the first case, it will be appropriate to work out an agreement with trade unions or, if trade unions are not active in the organisation or no agreement has been reached with trade unions, the remote working internal regulations should be announced (participation of employee representation required).

On the other hand, if only some employees are to be working remotely, it is possible to introduce this kind of working without any internal regulations. In this case, an agreement on remote working will have to be made directly with the employee concerned.

Does remote working always have to be regulated in formal documents?

No, it is possible to work remotely with no additional regulations and agreements. Such a form of remote working is called occasional remote working. Working outside the company on an occasional basis is limited to 24 days in a calendar year.

What are the employer's obligations resulting from the introduction of remote working legislation?

The employer shall be obliged in particular to:

• provide the employee with materials and tools, including technical equipment, necessary in order to perform the work remotely, or to reimburse the costs of other equipment used to provide work remotely;
• provide the employee with the installation, servicing and maintenance of work tools, including technical equipment, necessary in order to perform the work remotely (or cover the related costs), and also to cover the costs of energy and telecommunication services needed to perform work remotely,
• cover other costs associated with remote working; 
• provide the employee with training and necessary technical assistance; 
• define personal data protection procedure;
• prepare occupational risk assessment, taking into account that work will be performed remotely. 

Can remote working be discontinued? 

Yes, if remote working is introduced in the course of employment relationship, both the employer (with certain exceptions) and the employee can make a binding request to cease remote working and restore the previous employment conditions

SOBRIETY CHECKS

When can sobriety testing be introduced by the employer?

Sobriety testing may be introduced by the employer where such testing is necessary to ensure protection of life and health of employees or other persons, or property. 

What is the right document for posting sobriety control regulations?  

Regulations on sobriety control should be introduced in the collective agreement or in employment regulations, or in the employer's announcement (if the employer is not covered by a collective agreement or is not obliged to establish work regulations).

What information must be included in internal sobriety testing regulations?

The document introducing sobriety checks will have to specify, in particular:
the group or groups of employees to be covered by sobriety testing (all the employees or only some employees)
the manner of performing sobriety checks, including the type of device to be used and the form of testing, e.g., rotational testing) the timing and frequency of testing. 

Will sobriety checks apply to alcohol only?

No, the employer will have the option to introduce additional testing of employees, namely testing for the presence of substances having similar effect to alcohol, including drugs. The rules for introducing and performing such testing will be similar to those regulating alcohol sobriety checks.

Will only employees be covered by sobriety testing?

No, such testing may also cover persons cooperating with the employer on a basis other than employment contract, e.g., the contractors and the self-employed.