Coronavirus in Poland: Arrangement of Home Office

published on 27 March 2020 | reading time approx. 4 minutes

The epidemiological threat caused by SARS-CoV-2 poses special challenges not only to public healthcare systems, but also employers whose employees had or might have had a contact with the virus.

First of all, it should be noted that the employer is obliged to ensure safe and hygienic working conditions (Article 94(4) Labour Code). However, the analysis of this provision raises doubts as to what rights employers have to fulfil those obligations.

Can the employer order employees to work from home

One of the most controversial questions is whether the employer can order his employees to work from home. Remote work has not been regulated in the Labour Code (except for the so-called telework which does not, however, meet the needs of providing work outside the usual place of work from time to time). Remote work does not raise any doubts if it follows from the agreement between the employer and the employee.

In response to a threat of an epidemic, the act on special measures to prevent and combat COVID-19 was passed with effect from 8 March 2020. Article 3 of the new act says explicitly that the employer can order his employees to work remotely. However, such an order can be made only to prevent SARS-CoV-2. The mere intention to prevent the virus from spreading is enough to make the order. So it seems that the employer’s order to work remotely to protect the employees from the coronavirus cannot be challenged due to the fact that there is no such threat in a specific case. The act, in turn, introduces a limitation that the order to work from home must be for a limited time. Therefore, the order to work from home must not be issued “until further notice”.

Can the employer take other steps?

The employer cannot disqualify an employee who has recently been in a coronavirus-affected area from work on the grounds that he may be a potential carrier of the virus. That is because the employer is not entitled to assess the employee’s health by himself. According to the National Labour Inspectorate, the employer also cannot refer the employee for medical testing (except for obligatory check-ups). What is interesting is that even if the employer notices that the employee shows the symptoms, it is hard to find Labour Code provisions under which the employer could disqualify the employee from work. It seems that the only strict measure which the employer can take to turn the employee away from work is to release him from the obligation to perform work with the employee retaining the right to remuneration.

Employee’s perspective

Despite the limited options on the part of the employer, please remember that one of employee’s obligations is to cooperate with the employer and the superiors in fulfilling OSH-related obligations (Article 211(7) of the Labour Code). If there are any threats connected with the employee’s health condition (e.g. if the employee is suspected of having been infected or if the employee was in one of the coronavirus-affected countries), the employer can require that the employee cooperates with him to ensure safe working conditions for other employees. If an employee is suspected to have contracted the virus, an unjustified refusal to work from home may thus be considered a violation of the obligation referred to in Article 211(7) Labour Code. Consequently, no intention to cooperate in this regard may give the employer the reason to terminate the contract of employment with that employee with a notice period.

What if the employer takes no measures?

In an extreme case, if co-workers in the workplace have contracted the virus, the employee may refuse to work. However, please bear in mind that he or she may do so if the conditions of work “pose a direct threat to the employee’s health or life”. So it needs to be assessed whether just the fact that the employee who has been to coronavirus-affected area(s) is present in the workplace is a sufficient justification for the employee’s refusal to work. Virus threat must be direct and real, and not just potential.

Special act: changes

Employees who are temporarily released from work to take care of their children as their nurseries, kindergartens or schools get closed will be entitled to an additional childcare allowance. It will be granted under the rules provided for in the act on cash payments in case of sickness and maternity. The allowance can be received for a maximum of 14 days.

Important bodies: Chief Sanitary Inspector and Prime Minister

An important issue regulated by the new act is also an expansion of the powers of the Chief Sanitary Inspector. The authority will have a right to issue decisions (among others, related to employers) obliging employers to take specific preventive or control measures, as well as to request information in this regard. Additionally, the State Sanitary Inspectorate will be entitled to issue guidelines and recommended procedures for fulfilment obligations of, among others, employers.

The above mentioned decisions, recommendations and guidelines can be issued not only in the case of the coronavirus threat, but generally if there is a threat of an epidemic or a contagious disease. Unlike the regulations on ordering employees to work from home, the extension of the powers of the State Sanitary Inspectorate will remain in force for 180 days after the effective date of the act.

The act gives also additional powers to the Prime Minister. At the request of a provincial governor and after notifying the minister for the economy, the Prime Minister can instruct legal persons and enterprises to take certain steps to prevent COVID-19. The instructions are equal to administrative decisions and must be complied with immediately. They do not require written form – they can be made orally, by phone or by electronic means of communication.

If as a result of the instructions the enterprise is obliged to perform certain tasks, a relevant agreement will be concluded with him and their performance will be funded from the state budget. If the enterprise refuses to conclude the agreement, it will be obliged to follow the instructions under an administrative decision.

Excursus: Construction and repair

Construction and repair work carried out in connection with counteracting COVID-19 will be carried out without having to comply with Spatial Planning and Development Act and the Construction Act. This can be very important if hospitals or other healthcare facilities need to be extended quickly.