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Amendments to the Labour Code concerning remote work

by Katarzyna Małaniuk

16 December 2022

On 1 December 2022, the Sejm passed a bill amending the Labour Code, in particular its remote work provisions [1]. The bill was then referred to the Senate, which introduced four changes to it on 15 December 2022. Now, the bill will come back to the Sejm, which will approve or reject the Senate's changes.

Below we present the most significant changes introduced to the Labour Code.

Remote work – a new concept in the Labour Code

The bill introduces a new concept of 'remote work' to the Labour Code. This concept will replace the Labour Code's ‘telework’ and the related provisions will be repealed. Thus it will be crucial to address this issue from the aspect of employers hiring teleworkers.

According to the legal definition, remote work is work carried out wholly or partly at a place indicated by the employee and agreed with the employer – including the employee's home address, in particular by means of direct remote communication. However, contrary to what the current provisions on telework say, remote work does not have to be carried out by means of remote communication. Therefore, the Labour Code's definition of remote work is closer to that in the so-called Covid Act [2].

In addition, it will be possible to work remotely at the location indicated by the employee and agreed with the employer, including at the employee's home address, but also at other locations. Crucial, however, will be the employer’s consent to the employee working remotely at a given location.

The amendment to the Labour Code introduces a model of consensus between the employer and the employee regarding remote work, rather than a mere order-based model – as currently regulated in the so-called Covid Act. Parties to an employment contract may agree on remote work at the following time points:

when they sign the employment contract;
during employment – this can be agreed either at the employer's initiative or at employee's request filed in paper form or electronically.

Importantly, the employee may be ordered by the employer to work remotely only in the following cases:

during a state of emergency, a state of epidemic emergency or a state of epidemic and for a period of 3 months after their revocation;
when it is temporarily impossible for the employer to ensure healthy and safe working conditions at the employee's work establishment due to force majeure.

This is on condition that the employee files a paper or electronic declaration of having premises and technical equipment that are appropriate for working remotely; such declaration must be submitted before the employee is ordered to work remotely.

Implementation of remote work at the employer's work establishment

The employer will be required to define remote work rules in an agreement concluded with the company trade union. If such an agreement cannot be concluded or if the employer’s company does not have a trade union, remote work rules should be defined in a remote work policy. In such case, the employer must consult the policy with employee representatives.

The legislator has also indicated jobs (in Article 67(31)(4) of the Labour Code) for which remote work will not be possible. These include:

particularly dangerous jobs;
jobs resulting in exceeding physical agent exposure limits laid down for living premises;
jobs involving hazardous chemical agents, as referred to in the OSH regulations, related to the presence of chemical agents in the workplace;
jobs associated with the use or release of harmful biological agents, radioactive substances and other substances or mixtures giving off offensive odours;
jobs causing intense soiling.

Special entitlements for certain groups of employees

According to the bill, certain groups of employees will be entitled to request remote work, unless this is impossible due to the organisation of work or the type of work performed by the employee; these groups include among others:

parents working in the interrupted working time system, as part of flexible working time arrangements, or according to an individual working time schedule (Article 142(1)(1)(2) and (3) of the Labour Code);
pregnant workers;
employees raising a child up to the age of 10 (originally it was 4 years of age);
employees with a disability certificate or a severe disability certificate (this provision was added by the Senate);
employees taking care of another member of their immediate family or another person in the common household, with a disability certificate or a severe disability certificate.

If the employer rejects the employee’s remote work request, the employer will have to inform the employee of the rejection within 7 working days of the request.

Occasional remote work

The amendment in Article 67(33) of the Labour Code also introduces the possibility of working remotely on an occasional basis. After the Senate's changes, eligible employees will be able to work remotely 30 days per calendar year, whereas the original version of the amendment adopted by the Sejm provided for 24 calendar days. The employee will be able to work remotely on an occasional basis upon request to be filed electronically or in paper form.

In the case of occasional remote working, some of the provisions on remote work have been excluded, such as those relating to the agreement on remote work, ordering remote work, requests submitted by employees with special entitlement to remote work, the agreement or the remote work policy, the protection of remote work, as well as the provision of equipment and the payment of an allowance or a lump sum to cover the costs of remote work, and the exclusion of remote work.

Reimbursement of remote work expenses

The employer will be required to provide the remote worker with the necessary supplies and work equipment. Additionally, the employer will be required to ensure installation, servicing and maintenance of the work tools or to cover the costs related to their use. The employer will also be required to cover the costs of electricity and telecommunication services necessary to perform remote work.

The draft allows replacing the obligation to cover those expenses or pay a remote work allowance with the obligation to pay a lump sum corresponding to the expected costs incurred by the employee in connection with the remote work.

Entry into force

The amendment to the Labour Code after the Senate's changes is expected to enter into force 3 (rather than 2) months after the law is promulgated.

We recommend that employers and HR departments start working on the proper implementation of remote work in their organisations as soon as possible. For more information, feel free to contact our experts.

Legal basis:

[1] Act of 1 December 2022 on amendments to the Labour Code Act and certain other acts, draft paper 2335.

[2] Act of 2 March 2020 on Specific Steps to Prevent and Combat COVID-19, Other Contagious Diseases and the Crises they Cause.

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Katarzyna Małaniuk

Attorney at law (Poland)

Associate Partner

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