The COVID-19 outbreak forced lawmakers to put in place solutions to enable companies to function in the face of the crisis caused by the spread of the SAR-CoV-2 virus.

The change in the way businesses operate as a result of “enforced safety standards” has changed the labour market radically. The temporary solutions introduced initially (for the period of the epidemic emergency and then the epidemic state) are likely to become the normal operational routine in many companies.

One of the “solutions for times of epidemics”, is remote working, which allows employers to commission an employee to perform his/her duties, at a specified time, outside the place of their permanent performance (usually at home). This was introduced by the Act of 2 March 2020 on specific solutions related to preventing, counteracting, and combating COVID-19, other infectious diseases, and crisis situations caused by them (Journal of Laws, item 374, as amended). Due to the popularity of the use of this solution among entrepreneurs, the subject of remote work has evolved by making it more specific in subsequent iterations of the Act.

Currently, an employer may instruct an employee to perform remote work if the following conditions are met:

  • the employee has the skills to perform the work,
  • the employee has the technical possibilities and premises, which enable him to perform the work outside the place of its permanent performance,
  • the type of work performed makes it possible.

The employer should provide the tools, materials, and logistical support needed to carry out the remote work. An employee may only use his own tools and materials to carry out remote work if the protection of confidential information, business secrets, processed personal data, and information the disclosure of which could expose the employer to harm is ensured.

Due to the lesser possibility of controlling the manner and effects of remote work by the employer, since June this year an obligation has been imposed on the employee to keep a record of the activities performed, together with their description and the time of performance, if they are ordered to do so by their supervisor.

Employees must remember that if they receive an order to work remotely, they will be obliged to carry it out. Refusal to comply with the employer’s instructions may result in the employee being fined with a warning or reprimand for failure to comply with the established organisation and order in the work process and OSH regulations.

Despite the logistical challenges, it appears that most companies and their employees are widely adopting this solution, and interest in its use will not go away once the outbreak is over.

The attractiveness of the solution for both employees (e.g. greater flexibility of work, ease in reconciling professional and private life) and employers (e.g. lower energy and cleaning bills, resignation from renting part of the office premises) has initiated discussions on the implementation of this tool as a permanent solution proposed within the Labour Code. A month ago, the Ministry of the Family, Labour, and Social Policy confirmed the work of the Labour Law Team of the Social Dialogue Council on the introduction of remote working to the Labour Code, which was called for by employers’ organisations.

It should be noted that remote working was initially intended as a temporary tool to counteract COVID-19. The legislator made such a possibility available for a maximum period of 180 days from the date of entry into force of the Act, i.e. until 4 September 2020.

For this reason, a transitional element, but also a necessary one to enable the required amendments to the Labour Code, has become the extension of remote working introduced by the Act of 2 March 2020. Under the wording of the Act of 24 July 2020 amending the Act on the posting of workers in the framework of the provision of services and certain other acts (Journal of Laws, item 1423, as amended), an employer will be able to instruct an employee to perform remote work for the entire duration of an epidemic emergency or epidemic state and for 3 months after their cancellation. The provisions of the Act extending the period of validity of remote work will enter into force on 5 September this year.

It follows from the above that we may expect relevant amendments to the Labour Code at the beginning of next year at the earliest.

It is to be hoped that the introduction of remote working to the Labour Code will force the legislator, apart from defining it in detail, to regulate it precisely, not only in terms of OSH (including accidents at work), costs related to remote working, but also to establish its relation to teleworking which has been functioning for many years now.