Legal Alert: New regulations on remote working and employee sobriety checks

After almost 3 years of allowing employees to work remotely under the provisions of the Law on Special Arrangements for Preventing, Countering and Combating COVID-19, an amendment has been made to the Labour Code to make the provisions regulating remote work permanent in the Polish legal system.  The provisions of the amending law are, in principle, to take effect 14 days after the date of publication of the law in the Journal of Laws (this includes provisions on employee sobriety testing). On the other hand, the provisions concerning, among other things, remote work are to come into force 2 months after the date of publication, i.e. on 7 April 2023. 

According to the new regulations:

• remote work is work performed completely or partially in a place indicated by the employee, agreed each time with the employer, including at the address of the employee's residence, using means of direct communication at a distance;
• the rules of remote work should be specified in an agreement between the employer and the company's trade union organization, in the remote work regulations, in an order to perform remote work or in an agreement concluded with the employee;
• at the individual request of the employee, remote work may also be performed on an occasional basis, for no more than 24 days in a calendar year;
• remote work can be entrusted to the employee already at the conclusion of the employment contract or during the employment.

At the same time, except the case of occasional remote work, the employer is obliged towards the employee performing remote work to:

• provide the necessary materials and tools, including technical equipment and their servicing and maintenance;
• cover the costs of electricity and telecommunications services necessary for the performance of work duties;
• cover other costs directly related to the performance of remote work, if such an obligation is stipulated in an agreement concluded with the trade unions or in adopted regulations (or, in the absence of an agreement concluded or adopted regulations, in an order issued or an agreement concluded with the employee);
• provide the employee performing remote work with the training and technical assistance necessary to perform this work.

The employer will also not be able to refuse remote work to, among others, parents raising a child under the age of 4, pregnant women and people caring for a disabled family member, unless it is not possible to perform work duties remotely due to the organization of work or the nature of the work.

Employers who have established conditions for the use of telework in an agreement or by-laws will be able to use them until no later than 6 October 2023.

An important obligation of employers is the need to specify the principles of remote work in an agreement between the employer and the company trade union organization, and in the case where more than one trade union organization operates in the employment establishment - in an agreement between the employer and these trade union organizations.

In the event that there are no company trade unions at a given employer, the employer shall determine the rules for performing remote work in the by-laws (remote work regulations), after consultation with employee representatives.

Therefore, from the point of view of any employer intending to introduce remote work regulations in the organization, it is necessary to correctly carry out the process of implementing the regulations, including the correct determination of the costs that will be paid by the employer for remote work. In this regard, the employer will be required to cover the costs of remote work, and if so provided - pay a cash equivalent, or a lump sum estimation of costs, the amount of which will correspond to the expected costs incurred by the employee in connection with remote work.

According to the wording of the new law, when determining the amount of the cash equivalent or a lump sum estimation of costs of remote work one should take into account, in particular, the norms of consumption of materials and work tools, including technical equipment, their documented market prices and the amount of material used for the employer's needs and the market prices of this material, as well as the norms of consumption of electricity and the cost of telecommunications services.

As a result of the introduction of remote work, employers should also review their procedures, such as health and safety or data protection, prepare additional documentation (including applications, information, declarations), and conduct training as required by law.

Regulations on preventive sobriety checks are effective as of 21 February 2023. Pursuant to these regulations, the employer is allowed to implement internal regulations that allow to conduct employees' sobriety checks on its own, as well as checks for the presence in their bodies of substances having similar effects to alcohol, as long as it is necessary to ensure the protection of life and health of employees, other persons or the protection of property.

Employers who decide to introduce sobriety test checks will be required to specify in internal company acts (collective bargaining agreement, work regulations, announcement) the group or groups of employees subject to the check and the manner in which it is to be performed, as well as to maintain appropriate rules for processing employees' personal data in connection with the sobriety checks.

KPMG Law Bajno Stopyra sp.k. offers comprehensive support in the implementation process of new legal regulations on remote work and preventive sobriety checks. We recommend that employers who are planning to implement such regulations at their company should start preparing the required documents and making arrangements as soon as possible - so that they are ready before the new regulations come into force. If you have any questions, we encourage you to contact us.