Both employers and employees, facing the current epidemiological situation, are looking for new solutions in the performance of work. For this reason, the possibility of remote work from abroad is becoming more and more popular. Below are described the most important issues that the Employer should pay attention to before granting consent to remote work from abroad.
It should be remembered that, as a rule, we speak of remote work from abroad in the context of the form of work at the Employee's request, because if such an instruction is issued by the Employer, it may be classified as a business trip or posting workers and give rise to additional obligations on the part of the Employer.
So if an Employee applies for the possibility of performing work from abroad, he shall pay attention to following issues.
The most important issues that the employer should check:
- how the Employee’s stay shall be qualified (as business trip, posting a worker or other case of change of the permanent place of work)
- whether it is necessary to obtain appropriate permits for the Employee [in the case of work outside the European Union (hereinafter: EU), assuming that the Employee is not a citizen of that country];
- whether there is an obligation to report the fact that the Employee is working in a given country
- what are the obligations related to ZUS (some EU countries require an A1 certificate, while some non-EU countries require social insurance to be paid in the country of work);
- what are the tax obligations (the Employee may be subject to a tax obligation abroad, e.g. in the case of working abroad for a longer period of time or transferring the Employee's "center of life interests" abroad);
- what are the local labour law regulations:
- is there a need to conclude a local employment contract (such a requirement exists e.g. in Russia),
- whether the Employee is subject to the law of the country from which he works in the context of the minimum wage,
- whether it is necessary to apply only local labour law (this may be the case in countries outside the EU
Health and safety regulations and rules
It should also be remembered that before we agree that Employee works remotely abroad, we should oblige the Employee to observe and ensure safe and hygienic working conditions in the place where the Employee will perform remote work, as well as to submit a declaration that this place of work meets all health and safety conditions, especially those relating to the workplace, appropriate condition of the premises, including hygienic and sanitary rooms. It is best to confirm the above mentioned in writing and submit the document signed by the Employee to the personal file.
Information security and confidential information
Maintaining the confidentiality of information, the disclosure of which could expose the Employer to damage, is one of the basic obligations of every Employee, who while performing remote work from abroad, applies to the same extent as in the case of performing work in typical conditions. The employee should ensure confidentiality, including the provisions on personal data of natural persons (GDPR), in particular in the field of securing documents and data against access by third parties (e.g. family or roommates living with him or her, as well as third parties if the employee, when working remotely, uses public spaces - parks, restaurants, shared office spaces).If we do not have a separate confidentiality agreement with the Employee or for entrusting equipment, it is worth considering concluding them in these special circumstances.
Business equipment and reimbursement of travel expenses
It is also worth noting that if an Employee applies for the opportunity to remote work from abroad, the Employer is not obliged to provide equipment for its performance, but as it was emphasized above, it is recommended due to issues related to the protection of confidential information and GDPR. However, in the context of the reimbursement of other costs related to remote work from abroad, it should be noted that the Employer is not obliged to finance the Employee a coronavirus test or vaccine, if the country to which the Employee goes requires mandatory tests or vaccinations, but of course he has such an option. An open question remains the possibility of an Employee applying for reimbursement of costs for remote work in an apartment, house or hotel - these problems are resolved individually depending on many factors and circumstances.