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Labour law: Coronavirus as a challenge for Labour Law in Poland

Labour law: Coronavirus as a challenge for Labour Law in Poland

NEW REGULATION REGARDING CORONAVIRUS

Special-purpose Act on Coronavirus in Poland

As at the date of this notice, i.e. March 11, 2020, the rights and obligations of employers in relation to the spread of the so-called coronavirus is regulated by the "special-purpose act", i.e. the Act of 2 March 2020 on specific solutions related to the prevention, counteracting and control of COVID-19, other infectious diseases, and on the crisis situations arising from them.  First of all, it should be noted that according to Art. 2 Sec. 2 of the said Act, whenever this Act refers to "counteracting COVID-19", the term shall mean any and all activities related to the control of infection, prevention of spread, health prevention and control of the virus infection.

Provisions of Polish Special-purpose Act on Coronavirus

In the detailed part, the Act provides that:

  1. In order to counteract the coronavirus, the employer may instruct the employee to perform, for a fixed period, their work specified in the employment contract outside the place of its permanent performance (remote work),
  2. In the event of the closing of a crèche, children's club, pre-school, kindergarten or school attended by the employee’s child due to the coronavirus, an employee who is dismissed from performing their work because of the need to personally take care of the child is entitled to an additional care allowance for a period not exceeding 14 days. Importantly, the additional care allowance is not included in the 60-day limit on the care allowance granted on the general terms.
  3. The right to care allowance due to the need to take care of a child is also granted even when the school was not closed, but the county sanitary inspector or the state border sanitary inspector issued a decision on the necessity to isolate or quarantine a specific child. The necessity to isolate or quarantine is treated in the same way as a child's illness, because it means the inability of one of the child's parents to perform work in connection with the need to provide care to the child.

Coronavirus and remote work

I would like to point out here that the instruction to perform work remotely is, in the current legal status, an entitlement and not an obligation of the employer. What's more, in this whole situation, in making specific decisions, you can also support your instructions with the concept of the general duties of each employee, which are: the care for the interest of the workplace and compliance with the principles of occupational health and safety. On the other hand, however, it should be remembered that, as a rule, the employer is not entitled to assess the employee's state of health on their own. What's more, obtaining specific information from employees, e.g. about where they are taking their holidays, may raise doubts in the light of the provisions on the protection of personal data.

CORONAVIRUS AND RIGHTS AND OBLIGATIONS OF THE EMPLOYEES AND EMPLOYERS

On 26 February, the PIP (the State Labour Inspectorate) issued an official statement explaining the most common doubts in connection with the coronavirus and indicated that:

Coronavirus and business trips

An employee sent by their employer on a delegation (business trip) to areas threatened by the coronavirus may refuse to perform such an instruction because of the immediate threat to their life or health and the risk of spreading the disease in the country, i.e. exposing other people to danger.

Coronavirus and medical examination of the employees

The provisions of the Labour Code and the Regulation of the Minister of Health and Social Welfare of 30 May 1996 on carrying out medical examinations of employees, in the field of preventive health care over employees and medical certificates issued for the purposes specified in the Labour Code do not entitle the employer to refer the employee - without the employee's consent - to have any medical examinations performed in a situation where e.g. an employee has a cold and may threaten other employees, if such examinations do not coincide with the date of the next routine examinations.

Coronavirus and gathering information of holidays location

The employer has no legal basis to collect information on the employee's place of vacation, and the employee is not obliged to disclose information about their place of vacation.

Coronavirus and assessment of employee's health condition

The employer is not entitled to perform an assessment of the employee's health condition on their own; if the employer does not allow the employee to work due to the risk of virus infection, the employer may be faced with allegations of harassment or mobbing (however, in our opinion, no-one can talk about “harassment” or “mobbing” here, because by definition the two are long-lasting and repetitive in their nature; in this respect, the PIP's opinion is therefore completely incorrect).

Coronavirus and obligation to use the holiday entitlement

The employer may not oblige an employee who has returned to work from a zone at risk of the coronavirus to take their holiday leave; the employer is also not competent to take measures that are to isolate an employee under quarantine.

Commentary to PIP’s announcement

It should be noted that the PIP’s announcement was published on 26 February, and it was before the issue of the special-purpose Act and before the first case of coronavirus in Poland was confirmed.

Recommendations to employers with regards to coronavirus

Given the current state of facts and legal situation, we recommend that you publish official guidelines for employees. Due to the PIP’s standing and the personal data protection regulations, we recommend that these guidelines have the character of advices or recommendations for employees (and not binding obligations), according to the examples given below:

  1. if you feel sick or have a cold, do not come to work and go on sick leave,
  2. if you have recently traveled to a country at risk according to the information of the Chief Sanitary Inspectorate, i.e. China and South Korea, Italy, Iran, France (Oise department in the Hauts-de-France Region, Ile-de-France region, Haute-Savoie department in the region Auvergne-Rhône-Alpes, Morbihan department in the Brittany region), Germany (North Rhine-Westphalia) and Japan, or if you have had contact with such a person - do not come to work and call the HR department about the possibility of working remotely,
  3. if you have been quarantined, do not come to work and inform the HR department or your supervisor by phone,

Although we do not recommend obliging employees directly to provide information about their travels or trips, either already taken or planned, or about their health condition, but, in any case, if you have doubts about circumstances that may affect the safety of other employees, we advise that you recommend the employee, for preventive purposes, to work remotely (provided, of course, that the employee is able to work, otherwise they should take sick leave). As stated in the "special-purpose act”, in order to counteract the coronavirus, the employer may instruct the employee to perform, for a fixed period, their work specified in the employment contract outside the place of its permanent performance (remote work), As a result, the Act does not impose any additional requirements or criteria for making decisions on instructing an employee to work remotely, leaving the decision to the discretion of the employer. This means that, even for preventive purposes only, even without any additional risk factors such as an employee’s travel to a country with travel restrictions, employers are entitled to instruct their employees to work remotely for a limited period of time. For the record purposes, such an instruction needs to contain:

  • particulars of the employee,
  • reference to the connection between the employer’s decision and the purpose of counteracting COVID-19,
  • indication of the time of the remote work.

Recommendations of the Digitalization Ministry with regards to Coronavirus

To supplement the above, please see also the link below with the official general recommendations for entrepreneurs regarding the spread of the coronavirus:

https://www.gov.pl/web/rozwoj/zalecenia-dla-przedsiebiorcow-w-zwiazku-z-rozprzestrzenianiem-sie-koronawirusa

CORONAVIRIUS AND DATA PROTECTION (GDPR)

Collecting information from employees about their health

The issue of the possibility of collecting information from employees about their health status, their staying in areas with high risk of coronavirus infection and possible contacts with people who have been in such areas, has not been regulated yet. Entrepreneurs are waiting for the guidelines of the President of the Office for Personal Data Protection (UODO), which should be issued in the coming days. If such an opinion is given, the recommendations may change depending on its content.

In the EU countries that are struggling with the coronavirus, data protection authorities approach the subject very differently when interpreting the same provisions of the GDPR - some recognize that it is permissible to collect information about employees (Ireland, Italy) and some claim that the employer does not have the right to do so (France).

In Poland, only the PIP (State Labour Inspectorate) has issued official recommendations for employers in this field so far, but they are very unfavourable for employers. According to the PIP's recommendations, the employer has no right to collect information about the employee's health or whereabouts, or refuse to admit him or her to work, even if according to the employer the employee has symptoms of illness, e.g. increased body temperature.

This standing appears to be inappropriate, and the employer's introduction of precautionary measures in connection with the risk of coronavirus is justified by current legislation - including Art. 207 of the Labour Code, and Art. 6 Sec. 1 c and 9 Subpoints b and h of the GDPR. The employer is obliged to ensure safe and hygienic working conditions, which includes minimizing the risk of infection among their employees. To this end, the employer should have the right to process information, including information about the employees’ stay in a high risk area and their health status.

In this situation, until explicit recommendations are issued by the UODO, it is worth trying - above all - to convince employees to cooperate voluntarily. By the time the UODO issues their statement, it is not recommended to prepare any documentation in connection with the medical examination of employees or to collect any written statements as to their health or their previous or planned travels.

Coronavirus and possibility to measure the temperature of the employees

It is possible to measure the temperature of anyone entering the work facility without collecting any personal data, i.e. without keeping records of these measurements, listing employees and their daily temperature measurements, etc. Temperature testing has already been recommended, e.g. in court buildings. In such a case, personal data will not be collected and the requirements of the GDPR will not apply.

People with increased body temperatures may be refused to enter the facility. However, the problem arises if such a person is an employee.

The State Labour Inspectorate takes the view that if an employee's temperature is found to be increased, he or she may not be just sent home, not allowed to work or ordered to take leave:

"The employer is not entitled to perform an assessment of the employee's health condition on their own. If the employer does not allow the employee to work due to the risk of virus infection, the employer may be faced with allegations of harassment or mobbing.”

However, the risk of any claims made by employees appears to be lower than the potential risk associated with the spread of the coronavirus and the content of the recommendation itself is highly controversial. Therefore, if it is determined that an employee has an increased body temperature or other signs of infection, you should first try to persuade him or her to cooperate voluntarily - to go home or to the doctor, without giving any categorical instructions. If the nature of the work allows, you can recommend remote work.

In case of employees determined to enter the work facility despite their symptoms of disease, the decision should be made individually – if the risk is considered to be high, I believe that the employer has the right to refuse to let an employee into the premises based on Article 207 § 1 of the Labour Code.

Coronavirus and gathering written statements from the employers regarding their health condition

By the time the UODO makes their statement, it is not recommended to collect any written declarations from employees in this regard. In the current situation, the employer has no tools to request an employee to provide information about their stays abroad. However, the employer may ask their employees to verify on their own whether they might be at risk due to their travels and encourage them to work remotely or not to come to work, e.g. by providing them with guidelines in this regard - as indicated above.

We will keep you updated on any new official information or recommendations for employers.



Alicja Myśluk-Landowska

Lawyer

Alicja Myśluk-Landowska

Attorney-at-law, Senior Counsel

Alicja Myśluk-Landowska

Contact:

Rondo ONZ 1
00-124 Warsaw