#HRinCloud: Remote working finally regulated? We have a draft!

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!