Who Can Work Remotely
Remote work has become a hallmark of progress, and this is reflected in the new provisions of the Labor Code. In the vast majority of cases, transitioning to home office (or hybrid work) will require agreements between the employer and the employee; however, not everyone will be able to take advantage of it.
Different rules are provided, among others, for employees who are pregnant, employees raising a child up to the age of 4, or individuals who care for another family member. The employer should consider their request unless it is not possible due to the organization of work or the type of work performed by the employee. In such cases, the employer must present the employee with the reason for the refusal to consider the request.
Can the Employer Require Remote Work
The rights related to remote work apply not only to employees but also to employers. The employer may issue an order for remote work primarily if there is a state of emergency, a state of epidemic threat, a state of epidemic, and during the 3 months following their cancellation. However, a condition is that the employee declares that they have the appropriate housing and technical conditions for it.
The employer may also utilize this solution when force majeure prevents them from ensuring safe and hygienic conditions in the current workplace.
What Obligations Does the Employer Have in Relation to Remote Work
The organization of remote work should ensure its effectiveness, as well as the convenience and comfort of the employee providing it. The employer must, in particular:
- provide materials and work tools, including technical ones – necessary to perform remote work;
- ensure the installation, servicing, and maintenance of work tools or cover their costs;
- cover the costs of electricity and telecommunications services necessary to perform remote work;
- provide technical assistance necessary to perform remote work;
- pay compensation – in the case of an agreement that the employee will use tools not provided by the employer.
REPORT
Amendment to the Labor Code
12 Facts Every Employer Should Know
Find out how sobriety checks and remote work affect the additional obligations of the DPO in the context of GDPR.
How to perceive differences in the treatment of remote workers
An employee who works remotely or in a hybrid manner must not be treated less favorably than others. This applies, among other things, to employment conditions, promotions, or access to training. Certain differences may exist; however, they should arise from the specific characteristics of remote work.
In the context of remote work, there is a reference to discrimination. Regulations prohibit discrimination against employees who have chosen to work remotely. Those who have not taken advantage of this option should also not be treated worse because of their decision.
Remote work… occasional
In addition to the standard mode of remote work, an employee may also work remotely on an occasional basis. This occurs at the employee's request and for a duration not exceeding 24 days in a calendar year.
What obligations does the employer have regarding data protection in connection with remote work
Remote work results in a situation where the employee processes personal data continuously or regularly (and in the case of occasional remote work – periodically) outside the workplace. However, the employer must ensure that personal data is processed in accordance with the law, particularly with the GDPR. The multitude of violations confirms that the weakest link in personal data protection remains the human factor. The level of data protection in an organization increases when employees have the appropriate mechanisms and knowledge in this area.
An employer planning to implement remote work should strive to ensure the protection of personal data already at the design stage of the solution (privacy by design). To this end, they can appropriately configure the IT environment and introduce data protection procedures. The Labor Code explicitly mentions these latter procedures.
If necessary, the employer should conduct training and instruct employees. The employee confirms electronically or in paper form that they have familiarized themselves with the procedures and must adhere to them.
E-LEARNING
GDPR in remote work
after the amendment to the Labor Code
Through the training, employees will learn how to easily enhance the security level of remote work.
A dedicated training for employees who work remotely is not only a way to reduce the risk of future violations. By doing so, the employer gains an argument that allows them to demonstrate that they have made significant efforts to ensure an adequate level of data protection within their organization.
When can an employer implement sobriety checks
An employer may implement sobriety checks when it is necessary to protect the life and health of employees, other individuals, or property. Therefore, the employer does not have complete discretion – they may only implement sobriety checks when it is essential to protect the aforementioned goods.
A thorough assessment of the service's compliance with the GDPR may require appropriate knowledge and experience in both legal and IT fields. For this reason, in every case, it is best to entrust this task to professional and independent auditors.
Marcin Kuźniak – our data protection advisor, will guide you to the best solutions. Contact him and find out what options you have.
An employer planning to take such steps must first assess whether sobriety checks are indeed necessary to protect the life and health of employees or other individuals or property. The analysis should cover risk factors such as the type of work performed, the types of equipment used and their susceptibility to damage, the density of individuals on the premises of the workplace, as well as differences between various groups of employees.
How sobriety checks are implemented
Sobriety checks can be implemented through a collective labor agreement or work regulations, or by announcement, if the employer is not covered by a collective labor agreement or is not required to establish work regulations.
Regardless of how the check was implemented, the minimum content must include:
- information about the implementation of sobriety checks,
- the group or groups of employees subject to sobriety checks,
- the type of device used for the checks,
- the time and frequency of conducting the checks.
The employer informs employees about the implementation of sobriety checks no later than 2 weeks before their introduction, and if they employ a new employee subject to sobriety checks – before allowing them to work.
Who can be subjected to sobriety checks
The regulations provide for a wide range of individuals that an employer may subject to sobriety checks. In addition to employees, this will also include individuals employed under other types of contracts (e.g., contract of mandate, contract for specific work), as well as individuals who provide services within the framework of their own business activity.
How the check is conducted
The detailed method of conducting the check will be established in the relevant regulation. The law only indicates that for this purpose, devices will be used that have valid documents confirming calibration or verification. The method of checking is not to require laboratory tests. It follows, therefore, that it primarily concerns breathalyzers.
When the employer does not allow the employee to perform work
An employee may not be allowed to perform work if they are in a state of intoxication (above 0.5 per mille in blood or 0.25 mg of alcohol in 1 dm3 of exhaled air) or in a state after alcohol consumption (from 0.2 to 0.5 per mille in blood or from 0.1 to 0.25 mg of alcohol in 1 dm3 of exhaled air).
The threshold values are analogous to those applicable in road traffic. If an employee exhales less than 0.1 mg of alcohol in 1 dm3 of air or the alcohol concentration in the blood is lower than 0.2 per mille, there are no grounds to remove them from work.
If the employer unjustifiably removes the employee from work, this is equivalent to an authorized absence. In such a situation, the employee is entitled to remuneration.
How long information about the sobriety check is retained
The regulations do not provide for the possibility of processing information about the check in cases where it did not indicate a state of intoxication or a state after alcohol consumption. However, if the result of the check justifies the exclusion of the employee from performing work, information about the date, hour, minute, and result of the check may be retained for a maximum of one year from the date of collection. In cases where the information may constitute or constitutes evidence in proceedings, this period is extended until the legal conclusion of the proceedings.
The annual period is also extended in cases where the employee receives disciplinary penalties. It lasts until the penalty is deemed to be non-existent.
After the processing periods have expired, the information must be deleted.
Summary
The new rules for remote work can hardly be described as innovative. They are rather an attempt to standardize what employers and employees have developed in practice. The situation is different in the case of sobriety checks. The regulations are a clear response to the needs of employers. It is a fact that employers opted to implement remote work due to the SARS-CoV-2 pandemic and because of the slowly maturing preferences of employees. Remote work was an asset for employers, which they could use to encourage employees to join their structures, and its rules could be relatively freely shaped by the parties to the agreement. On the other hand, the regulations concerning home office will be evaluated after some time following the entry into force of the provisions.
