Month: September 2020

Remote working – it’s hard to imagine how modern business would cope without it, not only in the time of coronavirus, but in the 21^st century in general. For years, calls for regulation of remote working have been unsuccessful. It took the coronavirus outbreak to prompt the legislator to take the plunge. Some makeshift provisions were introduced under the anti-crisis shields, but it seems that only now remote working will be regulated in the Labour Code fair and square.

The draft was recently submitted for social consultation. Here’s an outline of the regulations:

1. Repeal of teleworking regulations

The draft provides for the regulation of remote working in the Labour Code, while at the same time repeals the existing regulations on teleworking. This will result in the loss of the statutory basis for the teleworking agreements concluded so far. Furthermore, the draft contains regulations providing for the possibility to conclude a corresponding agreement defining the conditions for remote working.

2. Definition of remote working

The draft regulations provide that work performed wholly or partly outside the employer’s registered office or other permanent place of work (as indicated in the contract of employment or by the employer) will be considered remote work, in particular if communication is carried out by means of direct remote communication.

3. Arrangement for remote working

The parties to an employment contract will be able to agree on remote working arrangement either upon concluding the employment contract or during the employment. An employee will be entitled to submit an application for changing the work mode to remote working, both in written and electronic form. The regulations also provide for situations in which the employer will be obliged to approve such an application, unless remote working is not possible due to the organisation of work or the type of work performed by the employee. The employees whose application will have to be approved include employees raising a child under 3 or a child with disability or requiring additional support (also after the child turns 18).

Employers will also have the opportunity to propose remote working to an employee, or, in some cases, to order employees to work remotely (e.g. in a state of emergency or pandemic, or if it is necessary due to the employer’s obligation to provide employees with safe and hygienic working conditions), provided that the employee has the premises and technical conditions necessary to perform remote work, which is confirmed by the employee in written or electronic form.

Notably, the draft provide for the protection of employees who will refuse the remote working proposal or cease to perform work remotely pursuant to the regulations. According to the proposed regulations, these circumstances cannot constitute a reason justifying termination of the contract.

4. Establishing rules for remote working

As in the case of teleworking, the rules for remote working will be established by the employer in agreement with the company’s trade union organisations (all of them or, if not possible, those with the status of a representative union organization).

The draft regulations also provide the employer with the possibility to autonomously determine the conditions for remote working in the work regulations. This right will be granted if an agreement is not reached within 30 days from the submission of the employer’s draft proposal. However, the employer will be obliged to take into account the arrangements made with the trade unions.

If there are no trade unions at the workplace, the employer will be obliged to consult with employee representatives appointed for that purpose.

However, the absence of the agreement or work regulations shall not prevent remote working. In the absence of relevant regulations, the rules for remote working may be established either by an order or by an individual agreement with the employee.

5. Discontinuation of remote working

The draft also provides for the possibility of submitting a binding request either by an employee of an employer to cease remote working within 3 months from the start of remote working. As a result, the parties may set a date of return, which must fall within 30 days from the receipt of the application. After the lapse of the 30-day period it will still be possible to restore previous conditions, but at the discretion of the other party. An employee will be entitled to submit a non-binding request, whereas the only procedure available for the employer will be to hand in a notice of termination amending the contract of employment. It takes away much of the flexibility of applying remote working rules.

6. Specific obligations of the employer – equipment, technical support and reimbursement for employee’s own equipment.

Remote working will involve special obligations on the part of the employer in terms of employee equipment. The employer will be obliged to:

• provide an employee with materials and tools necessary to perform remote work;
• cover costs related to installation, service, operation and maintenance of tools,
• provide technical assistance and necessary training in the use of tools.

Nevertheless, it will also be possible for an employee to use his/her own materials and tools which comply with health and safety requirements.  In such a case, the employee would be entitled to reimbursement, calculated based on the standards of wear and tear of materials and tools, their market prices and the amount of materials used for the employer’s purposes.

The employer will also be obliged to define the rules for the protection of the data provided to the employee and to provide instructions and training in this regard.

7. Cooperation with a remote employee. Inspection at the place of work

Basically, communication between the employer and employees is to be carried out by means of distance communication. Nevertheless, it is possible to decide with the employer on a different type of communication.

Employers will also have the right to carry out inspections at the place where an employee performs work, upon the employee’s prior consent. The inspection may take place during working hours and concern the performance of work, maintenance and inventory work or occupational health and safety. The inspection may not, however, violate the privacy of the employee and his/her family or hinder the use of the employee’s home premises.

However, the mere fact of working remotely cannot abolish the right of an employee to be on the workplace premises or to contact other employees.

8. Specific health and safety regulations. Employees to take on some OHS duties.

The proposed changes also include a number of specific health and safety regulations. They exclude some employer obligations which cannot be fulfilled due to the fact that the work is not carried out at the workplace and there is no possibility of direct supervision. Therefore, when it comes to e.g. proper organisation of the workstation, it will be up to employees.

How can the proposed regulations change in the course of the legislative process? What are their pros and cons? Which areas have not been adequately regulated? What can you do to prepare for their implementation in the future?

Let’s talk about it!

The Littler European Employer COVID-19 Survey Report, completed by over 750 HR executives and in-house counsel across Europe, is now available!

The report provides insight into the pandemic’s impact on the future of the European workplace, including in the areas of remote work, employee wellbeing, managing vacation time and workforce reductions.

Read the full analysis: https://www.littler.com/europe-covid-19-survey

Employees are dismissed in violation of the law and under any pretext –  trade unionits assess the situation on the labor market. Their ally is a new regulation: the labor court may reinstate a dismissed person before a final judgment.Employers are not happy with this regulation/  This regulation does not suit emplyers. They do not want to employees whom they dismissed for cause or due to absences to be reinstated. – Sławomir Paruch comments for money.pl

Article: here.

Parliamentary works are underway on the act amending the Act on foreigners and certain other acts. The new provisions will probably come into force still in 2020.

The amending act provides for significant changes in the procedures of obtaining Polish National Visas for the purpose of work. The most important of these changes include:

1. Stricter requirements regarding travel medical insurance:

a) in order to be accepted by the consulate, the insurance will have to be issued by an insurance company with legal presence in Poland, EU, EEA or Switzerland, and only exceptionally by an insurance company from elsewhere (subject to additional conditions which the visa applicant will have to demonstrate with appropriate documents);

b) an applicant seeking a Polish National Visa for the purpose of work will have to present insurance valid for the entire period of the intended stay in Poland, even if they are going to be insured with the Polish social security after starting work in Poland.

2. Changes to the consular territorial competence – it will be easier to apply for a Polish National Visa for the purpose of work for applicants temporarily residing outside of their country of permanent residence.

To learn more on changes being processed – see here.

Parliamentary works are underway on the act amending the Act on foreigners and certain other acts. The new provisions will probably come into force still in 2020.

The new regulations provide for a number of solutions to change the procedures for issuing, withdrawing and cancelling Polish National Visas. The most significant changes regard the proceedings on the issuing of the Polish National Visas for the purpose of work.

The most important changes to the Act on foreigners provided for in the amending act are presented below:

1.Stricter requirements regarding travel medical insurance, i.e.:

a) the insurance can only be issued by the insurance company having its seat or branch in Poland, EU, EEA or Switzerland, and exceptionally also by a company from outside this area – after meeting additional conditions, indicating its stable financial situation; in addition, in any case, the insurance company should provide a 24/7 alarm center service for reporting an incident that is subject to insurance liability;

b) an applicant seeking a Polish National Visa for the purpose of work will have to present insurance valid for the entire period of the intended stay in Poland, even if they are going to be insured with the Polish social security after starting work in Poland.

2. Changes to the territorial competence of consuls in matters of the Polish National Visas for the purpose of work – an application for such a visa may be submitted to the consul competent for the country where the visa applicant legally resides or temporary stays (and not only to the consul competent for the country of the applicant’s permanent residence).

3. Introduction of a deadline for completing the Polish National Visa process – 15 days from the date of submitting the application (with the possibility of extending it to 60 days – in justified cases);

4. Detailed specification of elements of the content of the decisions on refusal the Polish National Visa, and on withdrawal and cancelation of such visa;

5. Detailed specification of the content and the form of decisions upholding decisions on visa refusal, its withdrawal and cancelation – change concerns both the Polish National and Schengen visas (such decisions are to be issued on model forms);

6. The new processing time for the application for reconsideration of the case against the decision to refuse a visa (14 days from the date of submitting the application) – change concerns both Polish National and Schengen visas;

7. The new model application form for the Polish National Visa.

The Act on employment promotion and labour market institutions will also be changed. An amendment was introduced to the bill, the purpose of which is to enable foreigners who have a work permit and reside in Poland on the basis of a visa issued for humanitarian reasons to perform work legally. The current regulations do not allow for humanitarian visa holders to work in Poland even after obtaining a work permit.

The new regulations will come into force after 14 days from the date of their publication in the Journal of Laws.

Companies have to take into account lawsuits for infection or work in conditions of mental discomfort. Therefore, they should counteract spreading the coronavirus.-  Sławomir Paruch, attorney-at-law comments for Dziennik Gazeta Prawna.

Article link here.

 

Starting from September 16, 2020 direct flights to Poland remain banned only in case of 30 countries. The current number of countries allowed to fly directly to Poland is now the largest since the beginning of the COVID pandemic and the introduction of travel restrictions in Poland.

Full list of the 30 banned countries is presented below:

1) Belize;

2) Bosnia and Herzegovina;

3) Montenegro;

4) Brazil;

5) Bahrain;

6) Spain;

7) Israel;

8) Qatar;

9) Kuwait;

10) Libya;

11) Argentina;

12) Chile;

13) France;

14) Guatemala;

15) Honduras;

16) Iraq;

17) Colombia;

18) Costa Rica;

19) Lebanon;

20) Maldives;

21) Moldova;

22) Namibia;

23) Panama;

24) Paraguay;

25) Peru;

26) Suriname;

27) Cape Verde;

28) United States;

29) Bolivia;

30) Bahamas.

With the new list in force, India will be now able to organize direct flights to Poland. At the same time Poland has included France in the ban list. Among EU countries, Spain remains in the ban list.

Charter flights from the banned countries that were chartered by travel companies before September 16, 2020, will still be able to make direct flights to Poland.

Additionally, any country from the ban list will be able to resume flights to Poland as long as it officially notifies Poland that it guarantees to only allow passengers with a negative result of a COVID test to board the plane. At the moment no information is available whether any countries from the ban list have submitted such an official notification.

Passengers of direct flights to Poland remain exempt from obligatory post-entry quarantine in Poland (except travelers of direct flights from Russia, Belarus and Ukraine – post-entry quarantine obligation applies for these countries).

Restrictions on categories of foreigners eligible to enter Poland remain applicable in case of incoming travels from outside of the Schengen zone (subject to numerous exceptions).

The list of countries banned from direct flights to Poland is planned to remain in force until September 29, 2020. We expect that a new list will be published on the same date.

A new list of countries banned from direct flights to Poland is effective from September 16, 2020. The new ban list consists of 30 countries (as opposed to the previous list of 44).

New countries have been added to the ban list – notably France.

At the same time, some previously banned countries have been removed from the ban list – notably India.

Direct flights from the banned countries will be allowed in limited circumstances.

More detailed summary of changes can be read [here].