Remote work: new regulations effective from 7 April 2023

Remote work, so far introduced only through modest regulations of so-called anti-COVID rules and highly formalised telework provisions, will become a new, independent form of work under Polish labour law from 7 April 2023. The amendment will replace the now outdated form of telework. The new regulations will govern remote work much more strictly and impose numerous obligations on employers, primarily related to the necessity of maintaining documentation regarding the conditions of performing remote work and reimbursing costs incurred by employees.

Basis for Performing Remote Work

Remote work is defined by labour law. According to the new Article 67¹⁸ of the Labour Code, remote work may be performed fully or partially at a location indicated by the employee and agreed upon with the employer each time, including the employee’s place of residence, in particular by using means of direct remote communication. The provisions concerning remote work will have to be applied to employment relationships established on bases other than an employment contract, e.g., work based on appointment or nomination.
The basis for performing remote work, which simultaneously determines the rules of its performance, shall be:

1. An agreement concluded between the employer and the workplace trade union organisation, or, if more than one trade union operates at the employer, an agreement between the employer and those organisations or representative organisations.
2. A regulation established after consulting trade union organisations if within 30 days from presenting the draft agreement by the employer no agreement is reached with the aforementioned employee organisations.
3. A regulation established after consultation with employee representatives if no workplace trade unions operate at the given employer.
4. An order to perform remote work or an agreement concluded with the employee (depending on the mode of remote work performance), if no agreement with the workplace trade union organisation or regulation has been established.

Modes of Performing Remote Work

According to the amendment, remote work may be performed:

1. By agreement between the employer and the employee, which may be concluded upon the conclusion of the employment contract or during the course of employment (initiated by the employee or the employer).
2. By order of the employer (in strictly specified cases, i.e., during a state of emergency, epidemic threat, or epidemic, as well as within 3 months after their cancellation, or when ensuring safe and hygienic working conditions at the employee’s usual workplace is temporarily impossible due to force majeure).
3. At the request of privileged employee groups (e.g., pregnant women), which the employer is obliged to consider.

In the agreement with the workplace trade union organisation or the regulation, it is mandatory to include:

1. 1. The group or groups of employees eligible for remote work;
   2. The principles of employer’s reimbursement of costs related to remote work (including equivalents or lump sums, if applicable);
   3. The principles of communication between the employer and the employee performing remote work, including the method of confirming presence at the remote workplace;
   4. The rules of work performance control by the employee performing remote work;
   5. The rules of occupational health and safety control;
   6. The rules of compliance control concerning information security requirements, including personal data protection procedures;
   7. The rules for installation, inventory, maintenance, updating software, and servicing the work tools entrusted to the employee, including technical devices.

The order to perform remote work or an individual agreement with the employee must include the elements specified in points 2–7 above.

New Provisions Regarding Reimbursement of Costs Related to Remote Work

1. If the work is performed using materials and tools provided by the employer: The employer will be obliged to provide the employee with free installation, servicing, and maintenance of the tools necessary for remote work or cover the necessary costs related to their installation, servicing, operation, and maintenance. Additionally, the employer will have to cover the costs of electricity and telecommunication services necessary to perform remote work.
2. If the work is performed using materials and tools belonging to the employee: The employer will be obliged to pay the employee a monetary equivalent or a lump sum, the amount of which will be agreed with the employee and should correspond to the anticipated costs incurred by the employee in connection with remote work. When determining the amount of the equivalent or lump sum, consideration must be given to consumption norms of materials and tools, including technical devices, their documented market prices, quantity of material used for the employer’s needs, market prices of the material, as well as consumption norms of electricity and telecommunication services costs. Annual depreciation tables attached to tax laws may be particularly helpful. Due to applicable tax exemptions, thorough tax office audits concerning the amount and method of calculating the equivalent or lump sum are expected.

Regardless of the type of remote work, the employer may also cover other costs related to performing remote work, provided they are agreed with the employee or the workplace trade union organisation, in the order to perform remote work or in the regulation depending on the basis of remote work. The employer will always be obliged to provide the employee performing remote work with necessary training and technical assistance.

It is worth noting that both providing the employee performing remote work with materials and tools necessary for remote work and reimbursing costs incurred by the employee, including payment of a monetary equivalent or lump sum, do not constitute income within the meaning of the Personal Income Tax Act. This means that such income will not be included in the tax base nor social security contributions. It can be assumed that the link to remote work will be subject to a restrictive interpretation by the tax authorities and the Social Insurance Institution to limit abuses and attempts to avoid taxation of income from employment. Therefore, this concerns only costs directly related to remote work (though not necessarily limited to those listed in the Act).

Offer: Labour Law Lawyer

Remote Work and Health and Safety at Work: New Regulations

The employer will be obliged to ensure safe and hygienic working conditions to the remote worker within the scope resulting from the type of work performed, excluding provisions regulating cooperation between employers, providing first aid, condition and standard of rooms and facilities, providing preventive meals and drinks, as well as sanitary and hygienic devices and equipment. Initial health and safety training for employees hired for administrative and office positions may be conducted electronically.

1. 1. that are particularly dangerous;
   2. resulting in exceeding permissible physical factors norms set for residential premises;
   3. involving chemical factors posing hazards as per regulations on health and safety related to chemical factors at the workplace;
   4. related to the use or emission of harmful biological factors, radioactive substances, and other substances or mixtures emitting unpleasant odours;
   5. causing intense dirtiness.

The amendment also includes guidelines concerning the occupational risk assessment of employees performing remote work. The risk assessment should particularly consider the impact of remote work on vision, the musculoskeletal system, and psychosocial conditions of such work. Based on the results, the employer should prepare information containing:

A special type of remote work is regulated in Article 67³³ of the amended Act. This concerns so-called occasional remote work, or popular home office. It may be performed only upon the employee’s request submitted in paper or electronic form, for no more than 24 days in a calendar year. Some provisions applicable to “standard” remote work modes do not apply to it. Supervision of its performance, health and safety control, or compliance control regarding information security, including personal data protection procedures, is to be conducted only on terms agreed with the employee.
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