2023 changes in the Labour Code in Poland

Until now, comprehensive provisions regarding the implementation of remote work by employers were contained in the Act on Special Solutions Related to Preventing, Countering, and Combating COVID-19, Other Infectious Diseases, and the Crisis Situations Caused by Them. The pandemic made it evident to many businesses that remote work is an effective method that allows employees greater flexibility in balancing their professional and family responsibilities. Recognizing this, the legislator found it necessary to introduce more detailed regulations governing the remote work system into the Labour Code.

The Act of December 1, 2022 amending the Labour Code and some other Acts (hereinafter as: ‘the Amending Act’) introduces provisions into the Labor Code under Chapter IIc, “Remote Work.” This Act defines remote work as work that can be performed entirely or partially at a location specified by the employee and mutually agreed upon with the employer, including the employee’s place of residence, especially through the use of means of remote communication. Whether an employee can perform their duties remotely should be agreed upon between the employee and the employer when concluding an employment contract or during the course of employment through mutual agreement.

In order for employers to have the initiative to transition the workplace to remote work mode, the law points out the following conditions:

• During a state of emergency, a state of epidemic threat, or an epidemic, and within 3 months after their cancellation or
• During a period when the employer cannot temporarily provide safe and hygienic working conditions at the employee’s current workplace due to force majeure.

If an employee submits a written or electronic statement directly before the order is issued, confirming that they have the necessary local and technical conditions for remote work. In addition to the right to initiate remote work, employers will also have the initiative to terminate such a mode – the employer may revoke the order to perform remote work with at least a two-day notice.

Now, what happens if an employee wishes to work remotely? They should submit a request to their employer (in paper form) along with a statement confirming that they have the local and technical conditions for remote work. The employer is obligated to consider such a request, and in the case of an individual who:

• is pregnant,
• is a single parent of a child up to 4 years of age,
• provides care to another close family member or another person living in the same household, holding a disability certificate or a certificate of significant disability.

They will be required to give their consent, provided it is feasible due to the organization of work or the type of work performed by the employee.

In the event that an employee receives consent or is forcibly assigned to remote work by the employer, the employer will be obligated to fulfill several basic duties. Firstly, their task will be to provide the employee performing remote work with the necessary work materials and tools, including technical devices, required for remote work, including installation, servicing, maintenance of work tools, as well as training and technical support necessary for performing this work. Additionally, they will be required to establish and implement appropriate personal data protection procedures in the workplace.

An employer whose employees are eligible for remote work will also have the authority to conduct control in this regard. It may cover occupational health and safety matters, compliance with security requirements, and information security, including personal data protection procedures. In the event of irregularities in the aforementioned scope, the employer may revoke the consent for remote work, and the employee will be required to return to the workplace within a time frame specified by the employer.

The above changes are likely to come into effect in March 2023 due to the extended vacatio legis.

Another proposed change in the Amending Act modifying the provisions of the Act on Family Support and Foster Care System of June 9, 2011, as well as certain other laws. The main goal of the changes to be introduced by this law is to expand the rights of employees who are foster parents. Starting from February 1, 2023, parents who have taken a child into foster care or as a foster family will be entitled to more days off. An employee who has taken a child into foster care, excluding professional foster families, will have the right to leave under maternity leave conditions.

Meanwhile, on the 11th of January 2023, another draft of changes was submitted to the Sejm. It primarily proposes modifications to parental and caregiving leave. Employees will be entitled to up to 5 days of caregiving leave within a calendar year to provide personal care or support to a family member or someone residing in the same household who requires care or support due to serious medical reasons. Additionally, the provision prohibiting the employment of parents of children under 4 years of age during overtime hours will also be modified. In the new wording, this provision is intended to grant this right to parents of children who have not reached the age of 8.

The duration of parental leave is also set to change. Currently, it is 32 weeks in the case of one child and 34 weeks for multiple children. The draft proposes increasing these durations to 41 and 43 weeks, respectively. This leave will be available to both parents of the child. Importantly, any unused parental leave duration granted to the father will not transfer to the mother, and vice versa. Each parent will retain the right to 70% of their salary during this leave.

Two additional days can be used for reasons related to the occurrence of force majeure. This applies to cases where urgent family matters or matters that cannot be delayed require the employee’s absence from work. Such leave will be paid but at half of the regular salary.

The bill has only just been submitted to the Sejm (lower house of parliament). This means that before it goes through parliamentary readings and the amendment phase, the year 2023 may already be well into its second half.

The proposed amendments to the Labor Code from January of this year also include changes in establishing and terminating employment relationships.

For fixed-term employment contracts, employers would be required to justify their termination and consult with the trade union before making such a decision. The project, therefore, extends the obligations that previously only applied to indefinite-term contracts to those concluded for a predetermined period. Moreover, employees employed on fixed-term contracts, in the case of unlawful dismissal, would have the right to not only claim compensation for dismissal but also demand reinstatement.

The amendment would also affect trial period contracts. The project proposes that such contracts can only be concluded for:

• One month – if the intended contract is to be shorter than 6 months,
• Two months – if the intended contract is longer than 6 months but shorter than 12 months,
• A maximum of three months – if the intended contract is to be an indefinite-term contract right from the start.

Additionally, the project includes proposals for solutions aimed at enhancing the transparency of employment conditions. Employees must be informed about issues such as shift work (if applicable), the option to request an indefinite-term contract or an increase in working hours, and the employer’s training policy.