Changes to the Labour Code – remote work – JD Supra

After lengthy work, on 8 June a draft amendment to the Labour Code was sent for its first reading. The amendment is particularly important for employers using telework or remote working under the provisions of the Act on Special Solutions for Preventing, Counteracting and Combating COVID-19, Other Infectious Diseases and Crisis Situations Caused by Them (“Covid Act”).

The bill replaces the term “telework” with the consolidated term “remote work”. It will include both existing “telework” (i.e. work performed off-site on a regular basis) and existing “remote work” (i.e. a temporary solution introduced in connection with a pandemic) as well as previously unregulated, occasional “remote work”.

As a result of the above unification, once the amendment comes into force, employers hitherto using telework or remote working under the Covid Act will have to adapt its rules to the new regulations.

Adapting to the new legislation will be particularly important with regard to the use of remote working under the Covid Act. This is because it has been put on a much more formal footing and employers will have to prepare a package of documents ꟷ also in relation to employees previously working remotely (including a formal order to perform remote work, a procedure for the protection of personal data, a statement of employees’ technical conditions, an occupational risk assessment and information on the health and safety rules for remote work).

Remote working upon employer’s instruction – modifications to the Covid Act

Performing remote work at the instruction of the employer (i.e. as is the case under the Covid Act) will be possible during a state of emergency, during an epidemic or an epidemic state and for a period of 3 months after their revocation.

Furthermore, an order of this type may be issued during a period when, due to force majeure, it is temporarily impossible for the employer to ensure health and safety at work.

Employers who introduced remote working under the Covid Law during the Covid-19 pandemic period will have to adjust the terms and conditions of its application to comply with the requirements indicated in the amendment – within 14 days of the promulgation of the Law.

It will be necessary to issue a formal remote working order, which will have to specify in detail the rules for remote working, among other things:

  • reimbursement of the employee’s expenses incurred by remote working;
  • payment of an allowance or lump sum for the use of private facilities and materials;
  • control of work performance;
  • health and safety checks;
  • information protection and personal data protection.

In addition, the employer will be required to obtain a written or electronic declaration from the employee that s/he has adequate premises and technical conditions to provide remote working.

In addition, other obligations relating to remote working will also apply to the performance of work on this basis (e.g. the obligation to define a procedure for the protection of personal data and to collect from the employee a confirmation of acquaintance with this procedure).

Occasional remote work

The amendment also provides that remote work may be performed occasionally — based on an employee’s request submitted in writing or electronically. This mode of remote work is burdened with fewer obligations on the part of the employer and will also be possible after the end of states of emergency. However, it will only be possible for a period of 24 days per calendar year.

Unlike other grounds for remote working, in this case there will be no:

  • obligation to conclude an agreement or to lay down regulations on remote working;
  • employer’s obligation to provide work materials and tools;
  • employer’s obligation to cover the costs related to the remote working or to compensate for the use of private working materials and tools.

However, also in this mode, remote working will require the fulfilment of certain other obligations (e.g. personal data protection procedure, employee’s confirmation that s/he has read and understood this procedure).

Other effects of the amendment

Employers using telework on the existing terms and conditions will be able to apply the terms and conditions set out in the telework agreement or regulations for a period of 6 months after the amendment comes into force. Thereafter, the conditions must be adjusted to the amended Labour Code.

In addition, the amendment clarifies the requirements for remote working, e.g. with respect to the control of work performance or the employer’s obligations in the area of occupational health and safety (e.g. conducting occupational risk assessment, inspecting the site of an accident at work).

This bill is in the parliamentary process and may be subject to change in the future.

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