Labour Code and remote work

by Michał Prokop, Monika Spotowska

26 May 2021

The Ministry of Development, Labour and Technology published on 19 May 2021 a bill amending the Labour Code to include the remote work rules for good.

At present, remote work can be performed in three ways:

• telework;
• remote work based on the so-called anti-crisis shield legislation;
• remote work outside those two regimes.

The most important novelties included in the bill:

1. a definition of remote work has been introduced under which remote work will be work performed entirely or partially in the employee's place of residence or another place agreed upon by the employee and the employer, in particular by means of direct remote communication;
2. an assumption has been made that remote work may be agreed upon concluding an employment contract or in the course of employment (in the latter case, remote work could be performed at the initiative of the employer or employee);
3. the employer may order the employee to work remotely in special cases (i.e. during the state of emergency, state of epidemic emergency or state of epidemic and for 3 months after these are called off, or when the employer is required to provide safe and hygienic working conditions to the employee, if, for reasons beyond the employer's control, it is temporarily impossible to provide such conditions at the employee's current workplace), provided that the employee makes a prior statement that he has appropriate housing and technical conditions to perform work in this form;
4. an obligation to define the remote work rules to be included in:
   – an agreement concluded between the employer and the company trade union(s);
   – work rules set by the employer, if no agreement with the company trade union(s) has been concluded or if no company trade union(s) operate in the employer's workplace (in this case, the work rules would be set after consulting employee representatives);
5. remote work may also be performed at the employee's request if no agreements or work rules specifying the remote work rules, as mentioned in item 4 above, are in place;
6. the employer or remote worker may validly opt out of remote work within 3 months of its start;
7. the employer's obligations towards a remote worker (including providing the remote worker with materials and tools necessary to perform remote work, covering the costs directly related to remote work) have been described in detail and the parties have been granted the right to conclude an agreement on the use of private tools and materials for remote work;
8. the principles of control of the remote worker by the employer at the place of remote work have been defined;
9. a ban on discrimination of remote workers has been introduced;
10. a remote worker has been granted the right to stay on the company's premises on the same principles as those which apply to all employees;
11. special rules on health and safety at work have been introduced;
12. a remote worker may submit all applications for which the Polish Labour Code stipulates a written form, in hard copy or in electronic format.

For instance, employers will be obliged to deliver materials and tools necessary to work remotely and to cover costs directly related to remote work. The parties will also be able to sign an agreement on the use of the employee’s private tools and materials for remote work purposes.

Favourable rulings of the National Revenue Information Service – remote work allowance not liable to PIT
While the epidemic continues, the revenue authorities have been issuing employer- and employee-friendly advance tax rulings saying that expenditures for arranging remote work do not trigger additional income for the remote worker. However, the favourable rulings are based on the temporary anti-crisis legislation package. Therefore, it is worth watching the taxman’s approach to the measures introduced by the new bill.

Consequences of the proposed amendments

The proposed regulations will replace the Labour Code provisions on telework, which will be repealed. Some legal solutions regulating telework have been incorporated into the new provisions on remote work.
As a result, it is expected that performing work outside the workplace will be made more flexible and that remote work will become more widespread, also after the current state of epidemic is called off.

The new law is scheduled to enter into force 3 months after the state of epidemic in Poland is called off. Employers who have already specified the telework rules as part of an agreement or work rules will be able to adapt them to the new regulations within 6 months of the bill’s effective date.