Employment & labor law

Remote work – coronavirus

As we have already informed you before, the Act of 2 March 2020 on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them, in order to prevent the corn virus, allows employers to recommend employees to perform remote work.

Below you will find tips on how to recommend „the home office” to your employees in this particular mode.

  1. A form of entrusting remote work.

The table does not specify in what form the remote working command should be executed. Consequently, in principle, the employer may give such an instruction in writing, by e-mail, orally or even implicitly. However, for evidential purposes, we recommend that the order to perform remote work be documented (e. g. in writing, by e-mail).

  1. Justification for the order to entrust remote working.

The statement does not indicate the necessity to justify the decision to entrust remote work by the employer. However, it should be noted that the purpose of the Act itself, as well as the possibility of entrusting employees with remote work, is to prevent COVID-19. We therefore recommend that when recommending remote work to employees, we refer to the COVID-19 counteraction.

We would also like to point out that the possibility of recommending remote work to employees may be related to the identified cases of illness in the company, the place where the company is located or in the region, but it may also be purely preventive in nature. In accordance with Article 2(2) 2 Speculative statements „COVID-19 counteraction” means all activities related to infection control, containment, prophylaxis, prevention and combating the effects of the disease. The decision in this respect remains solely an autonomous decision of the employer.

  1. The period of remote working.

The specification does not specify the maximum period for remote work, but only indicates that the command to perform work in this mode should be performed "for a specified time”;. It should therefore be up to the employer to decide for how long an employee may perform his duties in a different place from his workplace. However, taking into account the purpose of this regulation, i. e. COVID-19 counteraction, this period should be adapted to the emergency. This means that, depending on the current situation, the period of entrusting remote working may be shortened or extended. At this point, however, we would like to point out that the specialty set will expire 180 days after its entry into force. As a result, the duration of remote working should not, in principle, extend beyond the indicated period.

  1. Remote working and housing conditions.

The law does not regulate the conditions to be met by the employee’s home office. If remote working cannot be performed due to the impossibility of ensuring safe and hygienic working conditions, the employer should designate another place to perform remote working.

  1. The place where the employee performs remote work.

We draw your attention to the fact that, in accordance with Article 3 remote work is defined as the performance, for a fixed period of time, of the work specified in the employment contract, outside the place of its permanent performance. It should therefore be noted that remote work does not have to be performed at the employee’s home – it can also be to any other, essentially arbitrary place. It seems obvious, however, that it is necessary to preserve the objective of the Act, i. e. The place of work should be selected in a way that allows for the prevention of COVID-19. As a result, an employer who wants to limit the access of employees to the workplace cannot at the same time rent out „shared space” for employees.

  1. The possibility for an employee to challenge remote work.

In this respect, reference should be made to one of the basic obligations of the employee, which is the obligation to follow the instructions of his superiors, which relate to the work, if they are not contrary to the law or the employment contract. The order to perform remote working falls within the limits of such a legal order, and therefore, in principle, the employee has no grounds for refusing to perform remote working.

Refusal to comply with the employer’s order to perform remote work justifies the imposition of a penalty of order on the employee. Given the circumstances of the case, it cannot be ruled out that the employment contract of an employee who persistently refuses to work in the „home office” mode can also be terminated, especially if it can be reasonably assumed that such a situation poses a threat to the health and life of other employees.

Author team leader DKP Legal Alicja Myśluk-Landowska
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