Remote work and sobriety testing – what changes await in the draft amendment to the Labor Code

1 December 2022 | Knowledge, News

Remote work and sobriety testing provisions are the main thrust of the draft amendment to the Labour Code, being currently worked on by the Extraordinary Committee for Codification Amendments after the second reading in the Sejm.

Sobriety testing by employers

The draft allows the employer to check the sobriety of employees with the proviso that this is done with the intention to ensure the protection of life and health or the protection of property. Such testing must respect the dignity of employees and not infringe their personal rights.

Provisions specifying the groups of employees to be tested and the manner of testing, including the type of testing device used by employers, and the frequency and purpose of testing should be introduced in collective bargaining agreements or work regulations – or in a notice if employers are not obliged to introduce work regulations, and made known to employees no later than 2 weeks before the start of testing.

The above information should be provided in paper or electronic form to new hires who will be subject to sobriety testing prior to their starting work.

The draft also sets out rules for the processing of personal data and information obtained in connection with conducted employee sobriety testing. Among other things, such data must be kept in employee personal file for a period not exceeding one year from the date of its collection, and only if necessary for the protection of life and health of employees or other persons, or the protection of property. This period shall be extended in the event that the data is used in connection with the incurring of a disciplinary sanction or used as evidence in proceedings.

New regulations on remote work

The draft defines remote work as “work performed wholly or partially at a place designated by the employee and agreed with the employer on a case-by-case basis, including at the employee’s home address, in particular using means of remote communication.”

Remote work arrangements may be introduced at the conclusion of an employment contract or in the course of employment – either at the initiative of the employer or at the request of an employee.

The draft also allows employers to introduce remote work during states of epidemic or epidemic threat and 3 months after their lifting, and when they are unable to ensure a safe and hygienic working environment due to force majeure.

At an employee’s request, it will also be possible to work remotely on an occasional basis for up to 24 days per calendar year. The employer will then be released from certain obligations, including the obligation to cover the costs of remote work.

Unless not possible due to the organisation of work or the type of work performed by the employee, the draft requires employers to grant the request to work remotely in the case of:

  • Employees who are the parents of children with a certificate of disability or a certificate of a moderate or significant degree of disability
  • Employees who are the parents of children with an opinion on the need for early development support, a statement of special educational needs, or statements on the need for remedial classes
  • Pregnant employees
  • Employees raising a child to the age of 4
  • Employees caring for another member of their immediate family or another person remaining in the same household, who has a certificate of disability or a certificate of a significant degree of disability.

If the request is refused, the employer must inform the employee on paper or electronically of reasons for refusal within 7 working days of such request being made.

Rules for remote work

The rules on the performance of remote work should be set out by the employer in consultation with a trade union organisation or organisations, if present. If no organisations are present at the employer, remote working rules will be introduced into employment regulations after consultations with employee representatives selected according to the standard procedure at that employer.

When introducing remote working, the employer should specify, in particular:

  • The group of employees who may be covered by remote working
  • Costs and payment rules
  • Testing rules
  • The means of communication with the employee, including the method of confirming attendance at work
  • Personal data protection and training rules.

The draft requires employers to provide relevant equipment and materials needed for remote work, including installation, service and maintenance of equipment, and cover costs of electricity and telecommunications services and other costs related to the performance of remote work.

Employees may perform work remotely after submitting a statement on paper or electronically, confirming that safe and hygienic working conditions are present at the remote work site, as agreed with the employer.

The draft also introduces a list of types of work that may not be performed remotely, including:

  • Particularly hazardous work
  • Work which results in permissible standards for physical agents laid down for living quarters being exceeded
  • Work involving the use or release of harmful biological agents, radioactive substances, or substances causing heavy soiling.

Remote work inspections

The employer, in consultation with the employee, will be able to conduct inspections of the remote work site. The following may be inspected: occupational health and safety or compliance with information security and protection requirements, including data protection procedures. The inspections must take place during the employee’s working hours.

When the Labour Code amendment comes into force

The amendment will enter into force 14 days after the date of publication, except for the remote working provisions, which will become effective two months after the publication date.

Any questions? Contact the authors

Monika Politowska-Bar

Aleksandra Orlik

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