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  • Working in the times of coronavirus or how to organise the work during a threat of an epidemic

Working in the times of coronavirus or how to organise the work during a threat of an epidemic

Wiesław Łatała , Managing Partner, Legal Adviser |

25 March 2020

The ongoing coronavirus pandemic has already affected the lives of most of us in a significant way. A number of countries, including Poland, have taken measures in order to contain the threat of spreading the virus. Legislative action was also among the measures to stop the increase in the number of infections. These actions were often taken in a hurry so as a consequence the introduced regulations are not always precise and suitable for current situation. Despite this, they affect a number of areas of life of people residing in Poland, so it is worthwhile to get acquainted with the most important regulations introduced in connection with the state of emergency.

One of the most important areas affected by the threat of a coronavirus epidemic and the regulations introduced in connection with it are the relations between the employer and the employee.

In this regard, relevant provisions arise from:

- Labour Code,

- the Act of March 2, 2020 on special solutions related to the prevention and eradication of COVID-19, other infectious diseases and crisis situations caused by them (hereinafter referred to as the COVID-19 Act),

- the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans,

- the Act of 25 June 1999 on cash benefits from social insurance in the event of sickness and maternity,

- Regulation of the Minister of Labour and Social Policy of 15 May 1996 on how to justify absence from work and granting employees time off work.

Currently, two bills are being processed in the Sejm (the lower chamber of the Polish Parliament) (one submitted by the Senate, the other - by opposition MPs) to amend the COVID-19 Act.

Can an employer examine an employee before allowing them to work?

Due to the spread of coronavirus, some employers have already taken some preventive actions, including measuring employee's body temperature before allowing them to work. A question arises about the legality of such practices.

Controlling the employee's state of health is an activity that significantly infringes their privacy. Therefore, the employer must have a legal grounds to do so. As of today, the provisions authorizing the employer to check the employee's state of health are only the employer's right and obligation to send the employee for pre-employment, periodic or return-to-work examinations. Sending an employee for such examinations is only possible if the conditions of Article 229 of the Labour Code are met (including the employment of a new employee, the lapse of time for which a medical certificate confirming fitness for work was issued, the employee's return after a longer period of inability to work).

In other situations (including the cases when the employee has returned from an area where the epidemic was more intense than in Poland), the employer has no right to oblige the employee to undergo a medical examination. The same is true when it comes to measuring employee temperature. Therefore, if an employee refuses to undergo such activities, the employer has no means to force them to do so.

However, An employee who has reasonable grounds to suspect that they may be a coronavirus carrier is obliged to inform the employer of this circumstance and take steps that will minimize the risk of transmission of the virus to other persons in the workplace. This obligation can be derived from the content of Article 100 § 2 points 3 and 4 of the Labour Code. According to this provision, the basic obligations of the employee are, inter alia, compliance with the health and safety regulations at work and taking care of the best interests of the employer's establishment.

Causing a situation in which an employee who may be a virus carrier stays in the workplace and exposes their colleagues to infection poses a real threat to the employer's interests, as the possible infection of those colleagues and subsequent necessity to quarantine them may paralyze the operation of the whole establishment. Therefore, it is possible to treat a situation in which an employee has a reason to believe that they are a carrier, and yet they come to work as a serious violation of basic employee obligations. Such an infringement of the basic obligations may justify the termination of the employment contract without notice. Of course, each such situation should be treated individually, each time assessing the grounds for suspicion that the employee is a carrier and the extent of risk posed by the presence of such an employee in the workplace.

Can an employee refuse to come to work for fear of infection?

According to Article 100 § 1 of the Labour Code, an employee is required to perform his work diligently and follow the employer's instructions if they do not contradict the law or an employment contract. However, if the working conditions do not comply with health and safety regulations and pose a direct threat to the health or life of the employee or if the work performed by the employee poses such danger to other persons, the employee has the right to refrain from performing work, notifying their superior immediately (Article 210 § 1 of the Labour Code).

As a consequence, in theory it is possible for an employee to refrain from providing work in the event of a coronavirus threat, but that threat has to be direct, real and objectively verifiable. The possibility of infection related to the very fact that a coronavirus has appeared in Poland is unlikely to justify refraining from work. The situation will be different, for example, when another person working at the same establishment has been found to have a virus infection.

According to the announcement of the National Labour Inspectorate (Państwowa Inspekcja Pracy) of March 12, 2020, an employee may, however, refuse to perform work if the employer decides to send them on a business trip to areas threatened by epidemic. In this situation, the probability of infection can be considered high enough for the employee to refuse to comply with the employer's instructions, protecting their health.

Other reasons justifying the employee's failure to appear at work

The closure of schools and kindergartens due to the risk of coronavirus forced many people employed under a contract of employment to stay at home and provide their child with proper care. The employee may justify such absence from work by submitting to the employer a statement that there are premises for closing the school or kindergarten. In this respect The COVID-19 Act introduced an additional allowance for a parent who temporarily resigns from work to take care of a child. This allowance is paid upon the employee's motion submitted to the employer, who is also responsible for direct payment of the allowance to the employee. However, only one parent of a child under eight years old is entitled to this benefit and only for a period of 14 working days. According to the Act on social security benefits in the event of sickness and maternity, there are cases in which a caretaker is entitled to the allowance while of taking care of family members over eight years old. However, the provision of the COVID-19 Act does not cover such cases. Additional childcare allowance is only available for a caretaker of a child under the age of eight. That is why, for example, the parent of a sick child who is older than eight years old, but is not yet fourteen, can only benefit from "ordinary" care allowance.

This solution is heavily criticized due to its extremely narrow scope of application and short period for which the benefit is granted. There is a significant risk that schools and kindergartens will remain closed for a period much longer than two weeks, which will entail the need to look after children much longer than 14 working days. Therefore, both draft amendments to the COVID-19 Act provide for an extension of the period for which the benefit is due.

Coronavirus and remote work

Article 3 of the COVID-19 Act grants employers the right to make an employee perform work specified in the employment contract outside the place of its permanent performance for a fixed period of time, (remote work). Remote work should not be confused with the telework described in Article 675 et seq. Of the Labour Code.

Telework is regular performance of work outside the employer’s establishment, using electronic means of communication. This form of performing work is supposed to be organized and long-lasting. For this reason, to introduce telework, the employer must introduce telework regulations in the workplace. The obligation to introduce such regulations does not depend on the number of persons employed by a given employer. Such regulations are introduced in consultation with trade unions or - if such unions do not operate at the employer’s establishment - after consultation with representatives of the employees. A telework agreement specifying the detailed conditions for performing work in this form needs to be concluded with the employee who is supposed to work in the form of telework.

Remote work can be performed on the basis of an employer's order, which in principle binds the employee and cannot be questioned by them. Basically, such an order should not change anything in the employees situation except the place from which the work is being done. The type of work, remuneration and hours during which the employee is obliged to remain at the employer's disposal (receive calls, read emails) should remain unchanged.

The regulation regarding remote work is very laconic and comes down to one single-sentence provision. This provision does not specify the form in which the order to perform work in a remote form is to take place or the ways in which the employer could control the employee's performance and compliance with health and safety regulations. Some indication as to how long remote work performed on the employer's order can be provided by Article 36 of the COVID-19 Act, pursuant to which Article 3 which is the basis for issuing orders to perform remote work expires after 180 days from the entry into force of the Act. This deadline should also be considered the longest possible period during which remote work can be performed.

Due to the imprecise nature of the regulation contained in Article 3 of the COVID-19 Act, it is worth considering for an employer who is not able to personally consult the terms of performing remote work with each employee separately to introduce in this respect an internal procedure determining e.g. criteria for the selection of employees who may be appointed to perform remote work, obligations of the employer in terms of equipping the employee with appropriate equipment and the employer's control over the employee's performance of tasks.

What rights does an employee have when the company does not work?

Not in every industry may an employee work in the form of remote work. As of March 16, 2020, many employers were forced to suspend or significantly reduce their activities. This raises the question of what the situation of an employee looks like, when they are ready to perform work, but for reasons beyond their fault they cannot perform it.

This situation is governed by Article 81 § 1 and 2 of the Labour Code. Pursuant to this provision, an employee is entitled to remuneration for the period of non-performance of work, in accordance with his job grade based on the assigned hourly or monthly pay rate. According to the Supreme Court, the remuneration resulting from the employee's personal grade is their basic salary and functional allowance (see: resolution of seven judges of the Supreme Court of 30 December 1986, reference number III PZP 42/86).

In a situation where the employee's remuneration has not been defined as a specific hourly or monthly rate (e.g. when the employee is entitled to piecework or commission remuneration - i.e. depends on the results of work), the employee is entitled to 60% of the remuneration calculated on the basis same basis as the remuneration for the time of the holiday. This means that if the employee's remuneration is variable, it is calculated on the basis of the average remuneration for the period of 3 months preceding the month of downtime. In cases of significant fluctuations in the amount of remuneration, this period may be extended to 12 months (Article 172 of the Labour Code).