April 2023

Two Amendments to Labour Code: Remote Work and Sobriety Checks

Two important amendments to Poland’s Labour Code have recently come into force, namely those concerning sobriety checks (effective 21 February 2023) and remote work (effective 7 April 2023).

Each of these changes involves the need for the employer to introduce internal regulations as stipulated in the regulations as well as the need to review the organisation’s existing documents regarding, amongst other, personal data protection.

Remote Work

The Labour Code provides for both wholly and hybrid remote work. In addition, employees can undertake remote work on occasion for up to 24 days per calendar year. Remote work defined as being undertaken at a place designated by the employee and agreed to with the employer in each case. This includes the employee’s home address.

Remote work can be undertaken at the request of the employee as well as in certain cases at the behest of the employer (e.g. during an epidemic, or the temporary inability to provide adequate health and safety conditions at the current workplace or in cases of force majeure); however, in certain cases also indicated in the Labour Code, such as when the request is submitted by a pregnant woman or an employee is caring for another member of their immediate family who holds a disability certificate; such a request is binding on the employer. Refusal to grant this request will require formal justification. However, it is crucial that the employee’s premises and technical specifications thereof are suitable.

The rules applicable to remote work should be regulated in:

  • an agreement between the employer and trade union(s); or
  • in regulations after consultation with employee representatives selected in accordance with procedures adopted within the organisation if there are no trade unions; or
  • an order to perform remote work; or
  • an agreement concluded with the employee.

The scope of these regulations is indicated in the provisions of the Labour Code, according to which it is necessary to determine, among others:

  • rules by which the employer covers the costs of the use of electricity and telecommunications services, or the cash equivalent for the use of materials and equipment on the part of the employee;
  • way in which employee attendance is logged;
  • rules for the use and maintenance of software and servicing of work tools used by the employee;
  • rules for checking the performance of remote work; and
  • procedures for personal data protection.

The employer must define the procedures for personal data protection, which most often amount to the verification of personal data processing policies already in place in the organisation, the updating of data processing records, changing the content of the privacy notice when introducing systems such as monitoring both the devices (and email) used by the remote worker.

There is also a formal requirement that prior to being allowed to undertake remote work, the  employee must declare that they have:

  • familiarised themselves with the employer’s occupational risk assessment evaluation as well as health and safety rules for undertaking remote work, and that they undertake to comply with them;
  • safe and hygienic conditions at the remote workstation indicated by themselves and agreed with the employer;
  • familiarised themselves with the procedures for personal data protection and that they undertake to comply with them.

Sobriety Checks

An employer may decide to introduce sobriety checks of employees. Control of employees for the presence in their bodies of alcohol or alcohol-like agents, as defined in the regulations, may also be introduced by employers organizing work performed by individuals on a basis other than employment and self-employed individuals, with respect to persons employed in the above manner. It is up to the employer (or the employer and the union organization) to decide which groups of employees the control would apply to, what methods and equipment (within the limits allowed by law) will be carried out.

To legally carry out sobriety checks, the employer should:

  • regulate principles in a collective bargaining agreement (CBA), in work regulations or in a notice, as appropriate, and thereafter notify employees about the introduction of sobriety checks and how they are regulated no later than two weeks before the start of such checks;
  • verify personal data protection documents, including the privacy notice for employees, and grant the applicable authorisations to process personal data to persons conducting sobriety checks;
  • ensure appropriate conditions for carrying out sobriety checks, taking into account respect for the dignity and protection of the personal rights of the persons being tested.

It should be noted that the employer should not store information obtained from employee sobriety checks found to have no alcohol in their body. According to Article 22(1)(c) §6 of the Labour Code, the employer may only process data concerning the time and date of the test and its result only when it indicated alcohol use or a state of intoxication. The employee’s consent is not required for this purpose. Such data should be kept in the employee’s files, as a rule, for one year, whereby in the case of the application of an official warning, reprimand or fine, until the penalty is declared null and void, and when the above data may constitute or actually constitute evidence in proceedings under law, and the employer is a party to such proceedings or has become aware of the filing of a lawsuit or the initiation of proceedings until the legal conclusion of the proceedings. After the expiration of the above period, the data shall be deleted.

For more details and tips, legal advice and business support, please contact Senior Associate Iga Piotrowska or Head of Compliance Jeremiasz Kuśmierz.