Remote work regulations (including the projected ones) and practice of using them


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Learning Outcomes

Objectives and goalsClick to read  

Know what remote work (teleworking) is and how it could benefit your business as the means of anti-COVID-19 resilience 
Know what are issues to be taken into account to ensure well-being of workers and continued productivity while teleworking 
Know what are the OSH and WLB issues of remote work
Know what are the issues connected with cross-border provision of remote work by workers who carry out remote work outside a sending Member State (e.g. ESMERALD Partner State)
Know what is the legal framework in Polish law (both existing one as well as the one envisaged to be introduced in the Polish Labour Code) and what are premises of remote work in other Member States of the Union (particularly in the Project Partner States)
 

Remote work regulations and practice of using them

What is ’remote work’ (telework)?Click to read  

Remote work’ is the most popular Polish expression used for ’telework’
TELEWORK’ in turn is defined as the use of information and communication technologies (ICTs) such as smartphones, tablets, laptops, and desktop computers, for work that is performed outside the employer’s premises (Eurofound and ILO, 2017).

In other words, telework implies work achieved with the help of ICTs and conducted outside the employer’s locations. Generally speaking (not always the case in individual national legal orders) – it should happen via a voluntary agreement between the employer and the employee.

There are several aspects of REMOTE WORK (TELEWORK) that need to be clarified in such a contract – such as the location of the work (e.g. at the employee’s residence or elsewhere), working hours (schedule), work to be carried out, communication tools to be used (and who is to provide them), supervisory mechanisms arrangements for reporting on the work undertaken and the payment of costs.

Before COVID-19 pandemic, only the fraction of the workforce was working from home occassionally. Within the EU, figures varied from 30 % or more in Denmark, the Netherlands and Sweden to 10% or less in Czechia, Greece, Italy or Poland.

A number of factors determine whether a job can potentially be performed remotely, e.g.: 

• Economic and occupational structure of a given country 
• Access to broadband internet
• Likelihood of owning a PC or laptop

Amenability of jobs to working from home increases with the level of economic development of a given country – most likely in countries with large numbers of jobs in ICT, professional services, finance & insurance and public administration. As a result of the government-issued stay-at-home orders, almost 40% of employees in Europe started remote work.

How could remote work benefit your BUSINESS?

• It could help to avoid larger incidence of COVID-19 
• A high degree of uncertainty associated with the reopening of businesses entails having to comply with a number of strict hygiene and safety regulations, and the continued restrictions as well as  physical distancing may not make it possible for the entire workforce to return safely to the employer’s premises. Remote work (teleworking) will remain necessary for at least some part of the workforce during this period.
• High-risk and vulnerable groups must be protected, which is why home-based remote work (telework) will be a very attractive alternative at least for the duration of the pandemic
• Expanded use of remote work may not end with the pandemic, but could become part of the ’new and better normal’ for years to come, supported by digitalization, advanced communication, and cloud technologies

Issues to be taken into accountClick to read  

Entrepreneurs’ practices should take into account a number of issues, concerning e.g.:   

• Working time and work organization;
• Training;
• Performance management;
• Digitalization;
• Communication;
• Occupational Safety and Health (OSH) & work-life balance (WLB)
• Legal and contractual implications 
• Issues connected with cross-border provision of remote work, including legal situation of employees hired by Polish entrepreneurs, who carry out remote work from outside Poland

Issues concerning working time and work organization

Entrepreneurs’ practices should be adjusted to the situation and include prioritization, workload, tasks and deadlines. Typical steps in that regard may include:

• Asking workers to prepare an individual remote work (teleworking) Workplan, which should be discussed and agreed upon with their direct supervisor / within a given team (whichever applicable). These Workplans should complement the current Workplans and related procedures 
• Clarifying priorities plus deprioritizing work that is not essential or realistic at the moment
• Agreeing on a common system to signal availability for work and ensure that managers and colleagues within a team respect it 
• Encouraging workers to share when they are feeling overloaded - to serve as an early warning system to detect the risk of burnout, and know when tasks or team members have to be re-assigned, carrying out a skill-mapping exercise to redeploy under-stretched workers to over-stretched teams / units; asking workers to share examples of how they have changed their everyday routines in ways that work for them
• Recognizing that time off-line is needed to getting substantive work done well 

Issues concerning training

Entrepreneurs need to acknowledge that, both for employees and managers, remote work entails reassessment of old working habits and learning new skills (sometimes to be done very quickly). Actions in this regard may include:

• Sharing ideas and tips for effective remote work openly within teams; the same applies to sharing challenges around work rhythms, time management, and healthy habits 
• Conducting regular surveys concerning challenges and needs of remote workers and then targeting those needs with dedicated online training, webinars, workshops, and coaching sessions (including, if needed – one-on-one sessions) 
• Offering training that focuses on learning about role-modelling and proactive engagement and collaborative approaches
• Offering training sessions that focus on soft-skills and behavioural aspects of remote work (teleworking), such as mindfulness or time-management skills for teleworkers; emphasizing exercise, eating and sleeping well, and disconnecting from digital devices

Issues concerning performance management

One of the most important sources of stress for any entrepreneur who cooperates with remote working teams is to maintain team performance. Typical steps in that regard may include:

• Being very clear about the expected results. Being as specific as possible about the expectations towards workers significantly reduces potential ambiguity and the possibility of misunderstanding; it may also lead to more empowerment and autonomy for the remote worker in completing their tasks succesfully
• Ensuring timely, regular, and descriptive feedback to workers, by describing what the workers did, and focusing on those changes that will result in the most significant improvement to the task and will have the expected impact.
• Trying to favour video-enabled calls for sensitive performance conversations, in order to allow for the more subtle non-verbal communication to transpire

Don’t forget to provide positive feedback whenever a job has been done well!

Issues concerning digitalization 

Digitalizations – socio-technical, evolving proces that takes place at the individual, organizational, societal and global levels (Legner et al., 2017). The steps to be taken by entrepreneurs in this regard may include:

• Reviewing the technology needs and resources of employees working from home (remote workers)
• Reviewing employees’ level of skills in accessing and working with the respective devices 
• Setting up the policy on whether remore workers are to be permitted to use their own devices or are to receive ICT equipment provided by their employers (of note – some legal orders may provide specific regulations in this regard or leave to the parties)
• Reviewing reimbursement modalities for supporting employees financially to ensure they have the right kind of equipment, internet, bandwidth and electronic tools
• Providing training opportunities to employees on the different tools they will be required to use, as well as self-assessment and external testing thereon; provide for schemes of delivery of equipment to employees

Issues concerning communication

There exists research evidence that teams that work remotely face more significant communication challenges than face-to-face teams (Hertel et al., 2005). To tackle such challenges, the following steps may be taken by entrepreneurs in this regard:

• Establishing internal communication norms focused on predictability and certainty to virtual conversations. They may include preferred response time, writing style, and tone, as well as length and level of detail of messages, turnaround time, etc. 
• 
Ensuring that remote workers know when and how they can reach their direct supervisors 
• Providing the timeframes and the best ways to get in touch with supervisor and colleagues, especially when the matter is urgent 
• Trying to avoid bias in communication (e.g. remote workers who are always communicating with each other; finding out which workers are silent as well as which are the most frequent connections among team members)

Communication shouldn’t be limited to content but should also include the social aspects of work + continue office ”traditions” where possible

Issues concerning Occupational Safety & Health (OSH)

Apart from benefits to remote workers’ well-being, remote work may involve challenges – major ones are psychological risks and ergonomics. To tackle such challenges, the following steps may be taken by entrepreneurs in this regard:

• Clarification of the rights and responsibilities of remote workers regarding their health and safety while working from home
• Clarifying and updating the responsibilities of employers for the protection of the occupational health and safety of the remote worker by taking stock of the health and safety risks and hazards, the home office environment, equipment, ergonomics, and stress
• Encouraging managers / supervisors to be a role model for staff under their supervision – to conduct themselves in ways that show how to mitigate stress and anxiety
• Establishment of new options or augmenting existing options for psychological support for workers to share their worries / anxieties in a confidential manner, i.e., through access to direct counseling, employee assistance programmes etc.

Pursuant to the literature review of The Lancet journal, studies surveying quarantined persons reported e.g. depression, stress, low mood, irritability, anger (Brooks et al., 2020, ILO 2020).
The following steps may be taken by entrepreneurs in this regard:

• Updating and empowering health and safety (OSH) professionals with tools and processes in terms of workers’ health support systems, the working environment, training, information, and compliance mechanism regarding OSH and ergonomic protocols specifically designed for remote workers.
• Training and raising awareness of managers, supervisors and remote workers on the importance of taking sufficient rest breaks during the workday (this also involves clarifying that such breaks won’t have negative career consequences nor influence the results)
• Using opportunities to promote physical health, including exercise & encourage workers to keep healthy habits

The provisions in the ILO Occupational Safety and Health Convention, 1981 (No. 155) and its accompanying Recommendation (No. 164) offer relevant guidance and measures.

Issues concerning work-life balance (WLB)

One of crucial challenges for remote working employees during the pandemic (and after) was the work-life conflict they are experiencing due to blurred boundaries between work and personal life. The following steps may be taken by entrepreneurs to alleviate this conflict:

• Supporting work-life boundary management by setting clear expectations about work outputs, and at the same time offering remote workers the flexibility to manage their own work schedules based on their individual needs and preferences
• Encouraging open communication and cooperation between remote workers, supervisors and managers around scheduling, availability, and boundary-setting within teams, making agreements in this regard (and sticking to them!)
• Supporting workers with small children or other care responsibilities who may be facing difficulties getting their work done and living up to the expectations – by allowing them eg. special parental leave schemes (put in place in several countries), external help to be funded by the entrepreneur etc.     

Issues concerning legal and contractual obligations

One of crucial challenges for remote working is in the clarifying the conditions of remote work, including location, reimbursement of remote work expenditure, as well as notification procedures in case of accidents. The following steps may be taken by entrepreneurs:

• Monitoring whether the respective legal order provides tax-free cost compensation for remote workers for the costs related to working from home, and informing and supporting remote workers to apply to receive this financial suport (or sorting it out for them)
• Revising employee benefits appropriately, if for example the continued remote working means that workers cannot avail themselves of some of their benefits (e.g., a gym membership, commuting compensation, free food and drinks, etc.) and ensuring that the overall salary and benefits package remains at the same level as before the pandemic, by potentially replacing some benefits with other options of equal value (e.g., gym apps, online coaching and learning options, etc.).

Issues concerning cross-border remote work

A very important and often neglected challenge are issues connected with providing remote work (teleworking) from abroad. The following issues should be taken by entrepreneurs:

• Clarifying the implications regarding personal income taxes and social security payments if workers are working remotely from a different country than the country in which the premise of the employer is located. The application for a Portable Document A1 (PD A1) may prove indispensable 
• Checking whether remote workers work remotely for the benefit of a contracting party to their employer, whether they are posted abroad within the so-called ’intra-corporate posting’ or hired out to a user undertaking or placement agency abroad (see Directive 96/71/EC in conjunction with Directive 2018/957/EU) – in such a case they could become posted workers why carrying out remote work from abroad
• Requesting work visas and residency permits
for those workers who are working remotely (teleworking) outside their country of origin and cannot return to that country due to pandemic-related restrictions concerning free movement across internal / external borders of the EU

Remote work in Partner States Click to read  

Relevant links

• Belgium:
https://www.etuc.org/en/rules-teleworking-belgium
https://cms.law/en/int/expert-guides/cms-expert-guide-to-mobile-working/belgium

• Croatia:
https://cms.law/en/int/expert-guides/cms-expert-guide-to-mobile-working/croatia
https://www.lexology.com/library/detail.aspx?g=ccd49a34-af61-46b2-9501-5dd31c421ecf

• Greece:
https://en.sev.org.gr/wp-content/uploads/2020/06/Telework_SEV_english.pdf
https://www.eurofound.europa.eu/fr/publications/article/2008/telework-in-greece

• Italy:
https://www.bollettinoadapt.it/wp-content/uploads/TELELAVORO-tiraboschi.pdf

• Spain:
https://nhglobalpartners.com/remote-working-law-decree-spain/ ; file:///C:/Users/MarcinKIE%C5%81BASA/Downloads/ES%20-%20Telework%20regulation-2.pdf

• EU level: 

European Labour Authority (ELA) report Impact of teleworking during the COVID-19 pandemic on the applicable social security (July 2021) – overview of measures and/or actions taken in the EU Member States to facilitate a flexible approach to the applicable social security of teleworking cross-border workers
[includes Partner Countries fiches] 
• Cross-border telework in the EU: fab or fad?
https://www.bruegel.org/blog-post/cross-border-telework-eu-fab-or-fad

Remote work in Poland (with focus on major amendments)

Relevant legal acts

Act of 2 March 2020 Act of 2 March 2020 on special arrangements relating to the prevention, counteracting and combating COVID-19, other infectious diseases and emergencies caused by them (Journal of Laws of 2020, item 374, as amended – hereinafter ‘COVID-19 Act‘);

Act of 26 June 1974 Labour Code (Journal of Laws 1974, item 141, as amended – hereinafter ’Labour Code’)

When it comes to remote work - on 8 June 2022, a draft of the latest version of the Act amending the Labour Code and certain other acts, providing, inter alia, for the introduction of provisions on remote work into the Labour Code, appeared on the website of the Sejm of the Republic of Poland (printed matter no. 2335, https://www.sejm.gov.pl/sejm9.nsf/druk.xsp?nr=2335).

Major novelties and aim of the remote work regulation in the Labour CodeClick to read  

• The draft Law provides for the rules on “remote work,” which would replace the regulations of the existing legal institution, now called “telework.” The original aim of the new legislation was to come into force when the extraordinary provisions on remote work contained in the Act of 2 March 2020 would cease to be binding
• From the employer’s point of view, they shall have a right to request employees to work remotely, even if this option was not provided for in the latters’ employment contract (this only applies in exceptional cases)
• Pursuant to the draft law, before the employer assigns remote work, the employee would have to declare that they have the necessary premises for such work. The employer shall also have additional obligations: to provide essential materials and tools for remote work and to cover the costs directly associated with the performance of remote work, such as electricity or internet access, as well as to ensure appropriate data protection in the process

New definition of remote work in Poland – envisaged in the Labour Code amendments 

Article 6718. Work may be carried out wholly or partly at the place indicated by the employee and agreed with the employer in each case, including at the employee's home address, in particular by means of direct remote communication (remote work). 

Agreement concerning the carrying out of remote workClick to read  

The envisaged Article 67 (19) § 3 of the Labour Code: 

An agreement between the parties to the employment contract concerning the performance of remote work by the employee may take place:

1) at the conclusion of the employment contract or
2) during the course of employment.

Official order concerning remote work

The envisaged Article 67 (19) § 3 of the Labour Code: 

Remote work may be carried out at the employer's instruction:

1) during a state of emergency, a state of epidemic emergency and for a period of 3 months after their cancellation; or
2) during a period when it is temporarily impossible for the employer to ensure safe and hygienic working conditions at the employee's current place of work due to force majeure 
- if the employee submits immediately before the order is issued a statement in paper or electronic form that he/she has the premises and technical conditions to perform remote work.

Employee’s application to work remotelyClick to read  

An employee may make a request to work remotely, and the employer is obliged to grant it, in the case of employees who are:
- pregnant
- parents: raising a child up to the age of 4; a child with a certificate of a severe and irreversible handicap or an incurable life-threatening illness that arose during the child's prenatal period of development or during childbirth; a child with a certificate of disability or a certificate of moderate or severe disability; a child with an evaluation on the need for early development support, an evaluation on the need for special education or an evaluation on the need for remedial classes;
- caring for another family member or a person in a shared household with a disability certificate or a severe disability certificate.

Occupational Health and Safety issues in Poland Click to read  

• Accidents during remote work;

• Risk assessment;

• Occupational and quasi-occupational diseases;

• Worker's and employer's health and safety obligations

Occasional remote work Click to read  

• The legislator in the draft also introduces the possibility of occasional remote work at the employee’s application, for a period not exceeding 24 days per calendar year. 

• In such case, most formal objections will not apply, with the exception of the data protection procedure.



Description:

The COVID-19 pandemic triggered the legislative work on irregulated sphere of remote work in Poland.
A high degree of uncertainty associated with the reopening of businesses entails having to comply with a number of strict hygiene and safety regulations, and the continued restrictions as well as physical distancing may not make it possible for the entire workforce to return safely to the employer’s premises. Remote work (teleworking) will remain necessary for at least some part of the workforce during this period.
High-risk and vulnerable groups must be protected, which is why home-based remote work (telework) will be a very attractive alternative at least for the duration of the pandemic
Expanded use of remote work may not end with the pandemic, but could become part of the ’new and better normal’ for years to come, supported by digitalization, advanced communication, and cloud technologies.
For the above-mentioned reasons, it is very relevant to discuss those topical issues in a separate training.
Currently, remote work in Poland is governed by Article 3 of the Act of 2 March 2020 on special arrangements relating to the prevention, counteracting and combating COVID-19, other infectious diseases and emergencies caused by them (Journal of Laws of 2020, item 374, as amended – ‘COVID-19 Act‘). That provision was introduced in connection with the outbreak of the pandemic and can only be applied for the duration of either the so-called state of epidemic emergency or the state of epidemic declared due to COVID-19, as well as for a period of 3 months after their revocation. This means that as of now - it is a temporary provision.
However, the Polish legislator has long been envisaging to create a new legal framework for the remote work. Its provisions are to be incorporated in the Polish Labour Code. Such regulations are to mix three kinds of remote work: total or partly-remote work as a rule, remote work in the periods of state of epidemic or ‘vis mayor state’ and the so-called ‘occasional remote work’ (to be available for 24 day in a year).
The envisaged provisions are to provide for remote work to be introduced by means of an agreement of the employer and the employee; as well as for the employer to be bearing the costs of such work. The latter will be to cover energy, internet and telephone costs, or pay a lump sum in that regard.
The main objective of the present training is to learn the current and envisaged provisions and how to use them in practice (including practical issue that may arise in the future).


Keywords

Remote work, employer, employee, place of work, cross-border remote work


Bibliography

-    REMOTE WORKING & PRODUCTIVITY – Poland In
https://www.youtube.com/watch?v=la5mBHbhpis
-    REMOTE WORK – Poland In - https://www.youtube.com/watch?v=ySQyeCnpxnI 
-    News from Poland—Business & Law, episode 5: Proposed changes in labour law relating to remote work
https://codozasady.pl/en/p/news-from-poland-business-law-episode-5-proposed-changes-in-labour-law-relating-to-remote-work