Coronavirus vs employers – guidelines of Poland’s National Labour Inspectorate

by Klaudia Kamińska-Kiempa

legal update as of 17 March 2020

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The Polish Senate prepared on 13 March 2020 a bill amending the special act on COVID-19, which introduced a number of changes the need for which has been widely articulated. This issue is also addressed in the below article about the opinion issued by the National Labour Inspectorate (Polish abbreviation: PIP) at the end of February 2020, published a few hours before the Senate presented the bill.

One of the changes proposed in the bill is to enable employers to check the employees’ health condition and whether he/she has been particularly exposed to the risk of coronavirus infection (Article 3a).  According to the bill, as part of measures to prevent the spread of COVID-19, the employer will have the right to:

• demand from the employee information whether he/she has recently been to a COVID-19 affected area; 
• demand from the employee who is reasonably suspected of being COVID-19 infected or who has recently been to a COVID-19 affected area that he/she undergo the necessary medical tests;
• check the employee's heath condition before admitting him/her to work, in particular to have his/her body temperature measured.

The amendment should be assessed positively as many employers have had doubts whether the procedures they are applying because they regard them as necessary to ensure the safety and health at work in view of the current epidemic risk are legitimate under the Labour Code.

Checking the employees’ health condition

Particularly relevant seem to be the amendments regarding the employer's right to interview the employee for his/her health condition, including having his/her body temperature checked.  The proposed provisions clearly allow employers to do it. Up to now, such rights have been inferred from the laws defining the fundamental principles of labour law and the basic obligations of the employer and employee. However, employers are not certain whether they really may exercise those rights due to, among other things, different interpretations of the labour law. The amending bill should remove the described doubts and concerns at least in this scope.

In my opinion, the bill still does not clarify the doubts over referring employees to medical testing. The bill introduces the right unequivocally, but it does not regulate the referral and medical testing procedure. In my view, in such a situation the employer should not refer the employee to medical testing but rather request the employee to have him-/herself checked in the nearest specialist hospital (infectious diseases hospital) or, if there is no such hospital within reach, to contact as soon as possible the nearest Sanitary Inspection station (sanepid) to implement appropriate procedures. This is also suggested by the wording of the proposed provision, according to which the employee must undergo “necessary medical tests”. Thus, “necessary medical tests” must be understood in the context of the current risk and the purpose of the proposed regulations, which is notably to minimise the spread of the virus.

Reasonable concern

Whenever there are reasonable concerns that the employee may be infected, his/her admission to work or justification of his/her absence from work become of secondary importance. In such a case, top priority is to be given to public health and this objective can be achieved only by implementing the appropriate measures as mentioned above, in accordance with the Contagious Diseases Act, the special act and the guidelines of the Chief Sanitary Inspectorate.

“COVID-19 affected area” cannot be understood solely as areas in foreign countries, e.g. Northern Italy, because the number of infections identified in Poland and the expected speed of the spread of the disease suggest that there may be such areas also in Poland.

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Klaudia Kamińska-Kiempa

13 March 2020

The National Labour Inspectorate published important guidelines for employers concerning COVID-19 on 26 February 2020.

The document contains answers to the most important questions concerning situations which may occur in connection with the pandemic and which will definitely affect businesses. Below please find our elaboration on answers to the most important questions.

Can the employer refer an employee who comes back to work after visiting a region/country where he/she might have got infected with COVID-19 for additional medical testing?

Can the employer disqualify an employee who has recently been to a coronavirus-affected area from work?

As far as the first question is concerned, the National Labour Inspectorate says that the employee cannot be referred for medical testing under Article 229 of the Labour Code and the implementing regulations. When it comes to the second question, the National Labour Inspectorate states categorically that a disqualification of such an employee from work may be classified as discrimination.

We cannot agree with that opinion – what is more, it needs to be emphasised that it is unrealistic and in no way does it match the current challenges that must be faced not only by employers, but also by the entire population.

Only the National Labour Inspectorate’s opinion that the employer cannot refer the employee for preventive medical testing can be agreed with. However, it does not mean that the employer is released from the obligation to take other steps and that he should without objections allow an employee who is reasonably suspected of being infected with COVID-19 to work. Just the opposite – the employer must not allow such an employee to work. First of all, the employer should order the employee to work from home under Article 3 of the Act of 20 March 2020 on Specific Steps to Prevent and Combat COVID-19, Other Contagious Diseases and the Crises They Cause (to justify the National Labour Inspectorate’s opinion it must be stated that the discussed guidelines had been published before the government commenced work on the special act); and if the employee’s work cannot be performed remotely, the employer should disqualify such an employee from work but the employee should retain the right to 100% of his/her remuneration.

The guidelines were published some time ago. Both the situation, and the perception of the problem of coronavirus threat have significantly changed. The problem no longer concerns exclusively those employees coming back from destinations where they were exposed to coronavirus. At the time of writing, there were already 61 confirmed cases of coronavirus, and the number has been rising. Consequently, all employees in Poland can already be considered as staying in an area in danger of the virus spreading. That is why, further discussion will not concern employees coming back from locations which might be affected by the coronavirus, but all employees as to whom the employer may have reasonable grounds to suspect that they may carry COVID-19, in a case in which the employer finds out about it before the information is passed on to the authorities which will take such an employee to a quarantine or subject him/her to compulsory treatment.

The employer not only has a right but also is obliged to disqualify from work an employee whose health condition and circumstances justify the concern that he/she may carry the coronavirus. The obligation follows e.g. from Article 207 of the Polish Labour Code according to which the employer must take steps and measures to ensure safe and healthy working conditions to all employees. At the same time, pursuant to Article 100(4)(5) of the Labour Code, the employee must also respect the interest of the work establishment and observe the principles of social interaction. Furthermore, pursuant to Article 211(7) of the Labour Code, one of the basic obligations of the employees is to cooperate with the employer and the superiors in fulfilling OSH-related obligations. Taking into account the scale of the threat, especially by looking at countrywide steps taken by the Polish government to prevent the virus from spreading, it is hard not to conclude that allowing an employee who is reasonably suspected of carrying the virus to work will contravene not only the obligation to ensure safe working conditions to other employees, but also general health interest of the other employees, and of the entire population. The fact that such an employee is disqualified from work in such a case cannot be considered discrimination, in particular if we look at Article 113 of the Labour Code. A provision under which the employee, without having regard to any justified reasons, would have a right to demand that he/she be allowed to work contrary to common sense, in particular without having regard to justified concerns of the other co-workers, would be irresponsible. Discrimination, in turn, would take place if the employer did not allow the employee to work only under the false pretence of being concerned of the coronavirus when in fact there was no reason for such a concern and the basis for such behaviour was in fact one of the reasons referred to in Article 113 of the Labour Code.

At the same time, it is true that the employer cannot refer the employee for preventive medical testing under the provisions quoted in the guidelines of the National Labour Inspectorate (i.e. Article 229 Labour Code), as well as under the Regulation of the Minister of Health and Welfare of 30 May 1996 concerning employee medical examinations, scope of employee preventive health care services and medical certificates issued for purposes provided for in the (Polish) Labour Code (Journal of Laws of 2016, item 2067). Still, it must be noted that those regulations do not actually apply to the discussed situation. Article 229 of the Labour Code and the other provisions of part IV Chapter 10 of the Labour Code, entitled “preventive healthcare”, as well as the abovementioned regulation apply above all to examinations performed to see if a given employee is or is not fit for work in a given position. In other words, whether the work that a given employee is going to perform can be harmful to him/her and whether the employee’s health condition is good enough to perform the work. However, the issue of whether the health condition of a given employee poses a threat to the other co-workers is checked as part of the abovementioned examinations and tests only indirectly (if at all). At the same time, please note that the procedure of carrying out the examinations referred to in the discussed provisions, in particular the fact as a rule they are carried out by the occupational medicine doctor, does not match the risk posed by the coronavirus, or even increases the general risk of passing the virus to other people, and not only co-workers.

If the only Labour Code provisions on referring employees for preventive medical testing do not match the type of threat, then it must be emphasised that in so far as the threat concerns contagious diseases (and where, at the same time, the employer is obliged to ensure safe and healthy working conditions to other employees), there is a loophole which can be eliminated only be referring explicitly to the rules of labour law, and in the context of the coronavirus – also to the act on preventing and fighting human infections and contagious diseases of 5 December 2008 and on the Act of 20 March 2020 on Specific Steps to Prevent and Combat COVID-19, Other Contagious Diseases and the Crises They Cause, whereby the acts should be construed taking into account the special purpose of their passing, i.e. to contain the virus.

In the context of employee's obligations, including in particular, the obligation to respect the interest of the work establishment and the obligation to cooperate with the employer and the superiors in fulfilling the OSH-related obligations, the employer should not so much refer the employee for preventive check-up as at least instruct him/her about the obligation to contact the nearest Sanitary Inspection station to undergo relevant procedures, and at the same time take measures to isolate such an employee from other workers. Employee’s refusal to undergo the abovementioned generally applicable procedures may constitute a violation of basic professional duties, including in particular, the obligation to respect the interest of the work establishment and to observe the principles of social interaction (Article 100 Labour Code), which may let the employer take appropriate measures.

An employee may be disqualified from work for the above reasons only and exclusively when he/she may reasonably be suspected of carrying the coronavirus. Consequently, the employer cannot abuse his right because if he disqualifies from work an employee with respect to whom there is no objective, justified concern that he/she has been infected with the virus, it is the employer who will be liable. Every time when making the choice, the employer will be caught between a rock and a hard place – on the one hand, that employee’s well being is at stake, on the other – the health and life of all the employees in the workplace is in jeopardy, not to mention the economic interest. Employers who have justified doubts as to the health condition of a specific employee will be in a particularly tough position, especially if such concerns are reported by other co-workers, if the employee whom these doubts concern fails to meet the formal criteria of going into quarantine (e.g. does not have the symptoms yet or is not in the risk group according to law).

When making this difficult choice, the employer must take into account the circumstances under which it must be made. It should be assumed that even if it turns out that the disqualified employee is actually not infected with the coronavirus, it will not mean that his disqualification from work was groundless – here it is key to determine whether the circumstance of the case justified a suspicion of being infected with the coronavirus, and the issue will be evaluated by the Labour Court in the case of a dispute, which seems the last resort here. In such a case, even if the specific suspicions are not confirmed, we should believe that when delivering judgments in specific cases, courts will take into consideration the special circumstances under which the decisions had to be taken, all the more so as the current situation is unprecedented, as evident from the very name of the act adopted by the Polish parliament. However, it should be borne in mind that the interest of a disqualified employee who cannot work remotely is secured if he/she retains the right to 100% remuneration for the time of the compulsory quarantine ordered by the employer.

As an aside, it needs to be noted that the above practice is justified also for purely pragmatic reasons, while this topic is closely related to risk management (compliance) issues. Even the employer’s exposure to an obligation to pay damages or fine for a failure to follow the guidelines of the National Labour Inspectorate may turn out to be a smaller risk than, e.g. suspending the production due to other employees’ going into quarantine, which can paralyse the operation of the work establishment and cause even higher costs.

Summing up, it must be emphasised that the above answers will be applicable not only to employees who come back to work in Poland after a visit abroad during which they were exposed to the risk of catching COVID-19, but also to every employee with respect to whom there is an objective and justified concern that he/she may be infected with the virus.

Can the employer refer an employee who comes back to work after visiting a region/country where he/she might have got infected with COVID-19 for additional medical testing?

No, the employer cannot refer the employee for such testing under Article 229 of the Labour Code and the implementing regulations because the testing does not match the type of threat that we are all facing. However, the employer should at least instruct the employee about the need to contact the nearest Sanitary Inspection station to undergo relevant procedures.

Can the employer disqualify an employee who has recently been to a coronavirus-affected area from work?

Yes, the employer has the right, or even is obliged, to disqualify such an employee from work if there is an objective and justified believe that he/she may be infected with the virus. However, first and foremost, such an employee should go into “compulsory self-quarantine” by being ordered by the employer to work from home under Article 3 of the special act. If the employee’s work cannot be performed remotely, the employer should disqualify such an employee from work but he/she should retain the right to 100% of his/her remuneration.