Month: May 2022

We would like to invite you to read Employment of non-nationals – general rules and provisions of the emergency Ukraine legislation published jointly with Dziennik Gazeta Prawna.

The publication discusses such issues as:

• Who can work without a work permit;
• What is the procedure for obtaining work permits;
• Special covid measures concerning non-nationals;
• Special rules for employing Ukrainians.

The publication is available on the website of Dziennik Gazeta Prawna.

Many Ukrainians who have escaped the war will soon be joining the Polish workforce. Their unusual and extremely difficult circumstances mean that employers need to take an unconventional approach, for example, granting them a package of bespoke benefits. It is not only a matter of corporate social responsibility (CSR) but also of human compassion and empathy. Apart from the standard perks that are expected nowadays, such as private medical care or a Multisport card, employers can offer their Ukrainian employees several other benefits. – Michał Bodziony and Kinga Rozbicka comment for Contact Online magazine.

Article: here.

Those who are working in Poland for Ukrainian employers are the main concern. According to Ministry of Family and Social Policy this is allowed under specific, complicated conditions, but there are significant doubts about this interpretation. – Tomasz Rogala comments for Dziennik Gazeta Prawna.

Article: here. 

The Ministry of Health intends to revoke the epidemic state on May 16, 2022. Draft regulation regarding this matter was published on government websites on May 9, 2022.

This information is relevant in terms of the “Anti-Crisis Shield” provisions application. Many of them will no longer be in force when the state of the epidemic or epidemic threat is lifted or after the expiry of the period specified in individual provisions (e.g., 3 months after their lifting).

According to the announcement, the epidemic state will be replaced by the state of epidemic threat at least until September 2022. It should be treated as an alert to employers that the “Anti-Crisis Shield” provisions may only be applicable until the end of the year.

What changes can we expect after the state of epidemic and epidemic threat are lifted?

I.Remote work

The basic solution that had already been introduced in the first version of “Anti-Crisis Shield” legislation is the possibility to request the employees to perform work remotely. As workers become more acclimated to the remote office environment, remote working is something that employees expect to be offered. This trend was noticed by the legislator, who undertook certain steps to permanently introduce remote work provisions into the Labour Code. Although these changes have been worked on since the beginning of the pandemic, the date of implementation is not yet known.

One of the conditions under which remote work can be requested by an employer is the state of epidemic or epidemic threat. After 3 months of their revocation, the employer will not be able to request employees to work remotely based on the existing provisions. The provisions specifying the conditions for performing such work will not be applicable either. It is worth considering regulating remote work under internal regulations.

II. Employee medical examination

Currently, the obligation to carry out periodic health examinations (including for certain groups of employees performing work in especially dangerous conditions) is suspended. When the state of epidemic threat is revoked and not subsequently replaced by the epidemic state or the epidemic state is also lifted, an employer and an employee are obliged to carry out periodic medical check-ups within 180 days from the revocation of the given state.

Revocation of the above-mentioned states will affect initial and periodical examination medical certificates issued by doctors other than those authorized to carry out these examinations. Such medical certificates will expire 180 days from the date of the state of epidemic threat revocation, provided that the epidemic state is not subsequently announced, or from the date when the epidemic state is lifted.

Furthermore, the obligation to conduct pre-employment medical examinations for administrative and office positions is reintroduced. Currently, if such an employee has a valid certificate allowing them to work, and the employer decides that the description of working conditions and requirements identified in the certificate match the conditions and requirements for the new job position, such an employee does not have to be referred to a new medical examination.

III. Medical examination of employees in specific industries

The obligation to perform medical examinations will also be reinstated for some industries regulated by specific legislation.

For example, drivers covered by the provisions of the Road Transport Act will be subject to:

• medical re-examination to determine whether any health reasons would prevent such a person from working as a driver,
• psychological evaluation for the same purpose,
• periodic training.

Examinations and training should be completed within 180 days of the revocation of the state of epidemic or the epidemic threat.

IV. Validity of medical certificates

The “Anti-Crisis Shield” legislation extends the validity of medical certificates from preventive medical examinations, psychological examinations, or other tests required by law to perform the work that expired after March 7, 2020.

Depending on the type of examination, the validity of the medical certificate will expire after:

180 days – pre-employment, return-to-work, and periodic medical examinations

60 days – psychological tests or tests other than pre-employment, return-to-work, and periodic medical examinations required by law from the date of revocation of the state of epidemic or epidemic threat.

V. Health and Safety Training

Once the state of the epidemic and the epidemic threat are lifted, it will no longer be possible to conduct health and safety training entirely online.

It will be necessary to conduct the “outstanding” periodic health and safety training. The “Anti-Crisis Shield” Act sets out that if the term of periodic training falls:

• within the period of the state of epidemic or the epidemic threat, or;

• within the period of 30 days from the date when either the state of the epidemic threat is lifted, provided that the state of epidemic is not subsequently announced, or the state of the epidemic is lifted,

then the deadline for carrying out the training would be extended to 60 days from the date when either the state of epidemic threat is lifted, provided that the state of epidemic is not subsequently announced, or the state of the epidemic is lifted.

VI. Severance pay, compensation, and other benefits related to the employment contract termination

• The revocation of the state of the epidemic and the epidemic threat will make it possible to limit the amount of severance pay, compensation, or other cash benefits paid by an employer to an employee in connection with the termination of the employment contract or a civil law contract.
• Such a solution is currently used by the employers who experience financial loss or a significant strain on the remuneration fund – within the meaning of the provisions of the “Anti-Crisis Shield” Act. Based on these rules, employers can reduce the amount of cash benefits payable due to, for example, collective redundancies, up to the amount of 10 minimum wages.

VII. Company Social Fund (ZFŚS)

Employers experiencing the above mentioned financial loss or a significant strain on the remuneration fund can also temporarily refrain from:

• establishing or running a company social fund,
• making a basic contribution to a company social fund,
• paying holiday benefits.

In such a situation, the regulations also provided for an automatic suspension of internal regulations increasing the amount of the contribution to the Social Fund, therefore the employers were only required to calculate and remit the contribution in the amount indicated in the provisions of the Company Social Fund Act.

If the employer uses these solutions, revoking the state of the epidemic and the epidemic threat will result in the restoration of the previous Company Social Fund rules.

VIII. Non-Competition Clause

Until the state of the epidemic and the epidemic threat are lifted, employers can terminate the employee’s non-competition agreement after the termination of the employment relationship upon giving a 7-day notice period.

IX. Overdue annual leave

The “Anti-Crisis Shield” Act provides that during the state of the epidemic and the epidemic threat, the employers may request an employee to use up overdue leave (up to 30 days) within the time limit specified by the employer without obtaining the employee’s consent.

This provision was in line with a practice that had so far been used by employers and accepted by courts. Therefore, we believe that even if it was repealed, the employers will still be able to ask the employee to use the overdue annual leave.

X. Certificates of disability, degree of disability, and unfitness for work

The revocation of the state of the epidemic and the epidemic threat will be of significant importance to people with disabilities. The “Anti-Crisis Shield” Act extended the validity of the disability and disability degree certificates which:

• expired up to 90 days before the “Anti-crisis shield” provisions came into force, provided that the application for a new decision was submitted within this period,
• expired after the date of entry into force of the “Anti-Crisis Shield” Act.

Such decisions remain valid up to 60 days from the date of revocation of the state of the epidemic and the epidemic threat. This extension, however, does not apply if a new disability certificate or a decision concerning a disability degree has been issued before the end of the above-mentioned period.

Apart from the above-mentioned decision, the “Anti-Crisis Shield” Act also extends the validity of decisions issued for a specified period, namely decisions regarding:

• partial unfitness for work,
• complete unfitness for work,
• complete unfitness for work and independent living,
• inability to live independently.

We would welcome the opportunity to support you in implementing necessary changes within your businesses. Please feel free to contact us.

Download: here.

This August marks the deadline for the implementation of the EU directives concerning work-life balance and transparent and predictable working conditions in the EU. The aims of the directives are, respectively, to achieve equality between women and men in the labour market by supporting work-life balance for parents and ensuring more predictable employment.

The obligation to implement the directives calls for changes to the Labour Code. That’s why it would be advantageous for the employers to already begin to adopt new measures in their organizations. We present the most important of them below.

1.Employment contract for a trial period

The draft provides significant changes in the rules for concluding employment contracts for a trial period. The permissible duration of the contract for a trial period will depend on how long the parties intend to work together.

After the changes are introduced, it will be possible to conclude the employment contract for a trial period for no longer than:

• 1 month – if you intend to conclude a fixed-term contract for less than 6 months,
• 2 months – if you intend to conclude a fixed-term contract for at least 6 months and less than 12 months.

The parties will be able to extend the above periods by up to one month if it is justified by the type of work performed.

The above solution is controversial. Employers will not always be able to predict the duration of the intended employment, or they can simply change their minds while the trial period still lasts.

The parties will also be able to decide to extend the employment contract for a trial period by the duration of potential employee holiday leave and other justified absences from work, if applicable.

2. Information for newly hired employees

The draft also involves changes regarding the information on employment conditions that employers are required to provide to newly hired employees. The date to provide such information will be modified (employers will be obliged to provide it within 7 days from the date of allowing the employee to work), as well as its scope. Furthermore, employers will have to inform an employee about, for example:

• possible breaks at work,
• rules for overtime work,
• employment termination procedure,
• employee’s right to training provided by the employer,
• rules of moving between different workplaces (if there is more than one).

Providing the required information will be simpler for employers as it could be given to employees in electronic form.

3. Additional employment

According to the draft, an employer will not be able to prohibit an employee from having an employment relationship with another employer or working for another employer on a different basis than the employment contract. However, it will not be applicable if the employer enters into a non-competition agreement with the employee.

4. Equal treatment in employment

Exercising employee rights under the Labour Code cannot constitute a reason for unequal treatment. An employee whose rights have been violated by the employer will be entitled to compensation in the amount not lower than the minimum remuneration for work, set out by separate provisions.

5. Carer’s leave

Employees will be entitled to a new type of leave – carer’s leave. They will be entitled to use up to 5 days in a calendar year to provide personal care or support to a family member or household member who requires a significant amount of care or support for serious medical reasons.

The application for this leave may be submitted by the employee in paper or electronic form, within 3 days before the planned beginning of the leave. The period of the carer’s leave will be counted towards the period of employment on which the employee’s rights and entitlements depend.

6. Exemption from work

Employees will be entitled to time off work for 2 days or 16 hours in a calendar year. They will be able to use it in extraordinary situations (caused by force majeure or urgent family matters). For the time of absence, employees will retain the right to remuneration equal to half of their normal remuneration for work.

7. Parenthood-related leave

The changes concern also maternity, parental and childcare leave and include, for example, extending protection for employees on maternity leave and leave on the terms of maternity leave and parental leave. Employers will not only be prohibited from terminating employment contracts with employees on parenthood-related leave but even from making arrangements for such termination(with some exceptions).

8. Application for change of employment conditions

An employee employed for at least 6 months will be allowed to submit an application to the employer in paper or electronic form once a calendar year for changing the type of work, type of employment contract to a permanent contract or for full-time employment. The employer will be required to reply and give reasons for the decision made no later than 1 month after receiving the application.

9. Prohibition of retaliatory measures

According to the draft, employers will also have new obligations related to the termination of employment contracts. If an employer terminates an employment contract with an employee who submitted the application referred to in clause 8 above, has an employment relationship with another employer or works for another employer on a different basis than the employment contract, or requested the employer to provide information about the employment conditions, the employer will have to prove that there were objective reasons for terminating the employment contract with such an employee or taking steps having an effect equivalent to the termination of the employment contract.

An employee who believes that for such reasons their employment contract for a trial period has been terminated or steps having an equivalent effect to the termination of the employment were taken, within 7 days will be entitled to request the employer to provide sound reasons for this termination or similar steps. The employer will be required to reply within 7 days.

If these provisions are breached, the employee will be entitled to compensation in the amount not lower than the minimum remuneration for work.

We will be happy to support you in the process of implementing changes at your organization. Please do not hesitate to contact us.

Download: here.

Social security coordination rules prevent a situation where an employee (contractor) who worked abroad, was previously reported for social insurance in the country of residence and should be covered by social insurance remains uninsured. Under these rules, it is not possible that an employed person is not subject to social insurance in neither the posting nor the host country – Łukasz Chruściel comments for Rzeczpospolita.

Article: here.

In case of transition of a workplace, is it necessary new work permits or amend existing temporary residence and work permits for foreign employees? – Kinga Polewka-Włoch and Ewa Wysocka comment for Dziennik Gazeta Prawna.

Article: here.