In 2021, discussions began on a number of important changes to employment-related legislation, the implementation of which will entail new obligations for employers. Some of these changes will involve the introduction of completely new legal instruments (e.g. concerning the protection of whistleblowers), and some will necessitate the adjusting of existing solutions to the stringent new requirements. Below is a brief summary of the most significant upcoming changes in employment law.
Before the outbreak of the COVID-19 pandemic, companies sometimes offered their employees the opportunity to work from home on an occasional basis. However, with the need to limit the spread of the virus, this has now become a necessity.
As a result, a new bill introducing remote working into the Labour Code was published (the first version in May 2021 and the second version in July), the main advantage of which is the more practical approach it offers in comparison to the existing regulations. According to the bill, work can be performed entirely or partially from a place other than the office. The principles of remote work will have to be set out by the employer in an agreement with the trade union(s) active in the employing establishment, and if no agreement can be reached within the statutory 30-day period – in the employer’s internal regulations. If there are no trade unions in the employing establishment, the content of the regulations should be consulted with employee representatives. The bill specifies the minimum content of the regulations and also imposes a number of additional obligations on the employer, e.g. to cover the costs related to the performance of remote work, such as the costs of the installation and operation of electronic equipment or the costs of electricity and necessary access to telecommunication lines. Another important issue will be the necessity to observe occupational health and safety requirements in respect of employees working remotely, which will include the new requirement to prepare occupational risk assessments for remote workstations.
The bill has not yet been presented to the Sejm (the lower house of the Polish Parliament), and because of this lengthy process, many employers have prepared their own internal procedures for so-called hybrid work, while others are operating on the basis of their existing practices. However, in both cases, if the bill enters into force, employers will have to adapt to it.
Protection of whistleblowers
In October 2021, a bill on the protection of whistleblowers (required to implement EU Directive 2019/1937 – the so-called Whistleblower Protection Directive – into Polish law) was published for public consultation. The proposed legislation (discussed in more detail here) is particularly needed in view of the lack of regulations in the Labour Code relating directly to the reporting and disclosure of violations of the law.
One of the key elements of the bill is the prohibition on retaliatory actions being taken against whistleblowers. The bill contains a rather general list of such actions, which include termination of employment, withholding of a promotion, and a reduction of remuneration. Importantly, once the legislation enters into force, employers will have to establish rules concerning the internal reporting of matters specifically indicated in the act, which will have to be consulted with the company trade union organisation or the employee representatives. Employers will also have to keep a register of such reports. As a rule, this requirement will apply to employers that have at least 50 employees (unless they are engaged in activities relating to financial services, products and markets, the prevention of money laundering and terrorist financing, transport safety and environmental protection – in which case, the requirements will apply regardless of the number of employees).
Failure to comply with the requirements under the new legislation will result in sanctions being imposed on employers. The obstruction of reporting, retaliation, or failure to establish an internal whistleblowing procedure will be punishable by a fine, a restriction of liberty, or imprisonment of up to three years.
Although the law should have entered into force on 17 December 2021, the bill has still not gone through the legislative process. According to the bill, employers with at least 250 employees will have to comply with the new regulations when the law enters into force, while those with between 50 and 249 employees will have until 17 December 2023 to do so.
Checking employees’ sobriety
In May 2021, a proposal was made to introduce into the Labour Code the right of employers to carry out sobriety tests on their employees. This is not currently possible because information on the presence of alcohol or substances acting in a similar way in the body constitutes health data in the meaning of the GDPR, which means that it can only be provided to the employer at the employee’s initiative. However, there are a number of exceptions to this rule – one of them being the situation in which the processing of such data is necessary for the fulfilment of specific obligations and/or the exercising of specific rights by the data controller in the area of employment law. Therefore, the purpose of the proposal is to introduce into the Labour Code a clearer legal basis allowing employers to check whether employees are under the influence of alcohol (in practice – using a breathalyser).
Under the proposal, an employee who is found to be under the influence of alcohol (from 0.2‰ of alcohol concentration in the blood or 0.1 mg in 1 dm3 of exhaled air) will not be allowed to work and will not receive remuneration for the period of absence. The employer will also be able to impose appropriate disciplinary measures, including penalties provided for in the Labour Code, and – depending on the circumstances – even termination of employment without notice.
Employers that wish to carry out sobriety tests will have to adjust their internal regulations accordingly. Under the proposal, a collective agreement, the workplace regulations, or an announcement (if the employer does not have such regulations, i.e. if it has fewer than 50 employees) should specify, among others things, the groups of employees who may be subject to the sobriety test, the type of test to be used, and how it is to be performed – which must not violate the dignity and other personal rights of the employees. The employees should also be properly informed that they may be subject to sobriety tests.
The proposal has been subject to public consultation since May 2021. In late November 2021, it became apparent that there are now plans to regulate remote working and sobriety tests in one major amendment to the Labour Code.
Verification of employees’ vaccination status
In December 2021, the Sejm received a bill on special solutions enabling the conduct of business activity during an epidemic, which allows employers to verify the COVID-19 status of employees (discussed in more detail here). Pursuant to the bill, during a state of an epidemic emergency or a state of an epidemic declared due to COVID-19, the employer may require that an employee or a person in a civil law relationship with the employer provide information about having a negative result of a diagnostic test performed within the last 48 hours. However, this obligation will not apply to people who have been vaccinated or who have already recovered from a COVID-19 infection.
The current bill differs somewhat from the original one published earlier in the year (in August), which envisaged that employers would be able to obtain vaccination data without having to meet additional criteria. The current version focuses primarily on testing – with employees being able to exempt themselves from undergoing a test if they have already been vaccinated (in other words, the employer will receive information about whether an employee has been vaccinated in a roundabout way, only if the employee is willing to share this information).
Legislative work on the bill is expected to continue in January 2022 and according to its wording it will enter into force on the day following the day of its publication.
Changes in the employment of foreigners
In December 2021, a bill amending the Act on Foreigners was submitted to the President. The bill addresses a number of issues that will have a direct impact on the employment of foreigners in Poland. Among other things, the employment of citizens of Armenia, Belarus, Georgia, Moldova, Russia and Ukraine is to be made quicker and easier by introducing the possibility to entrust them with work without the need for a work permit, but on the basis of a “declaration on entrusting work”, which must be entered in the “register of statements”. At present, the period of performance of work on this basis may not exceed a total of six months within a 12-month period; under the amendment, the period for performing work specified in the declaration is to be extended to 24 months.
There are more details on the employment of foreigners here. It is expected that the new rules will enter into force in early 2022.
New powers of the State Labour Inspectorate
In April 2021, a proposal was submitted to the Sejm to give the State Labour Inspectorate the power to determine, by way of a decision, the existence of an employment relationship in the situation where an employer engages an individual under a civil law contract, while in reality the terms and conditions of the contract meet all the statutory requirements of an employment relationship. Currently, in such a situation, the State Labour Inspectorate may only initiate court proceedings to establish the existence of an employment relationship.
Mainly due to the length of court proceedings, the authors of the proposal argue that the reclassification of a civil law contract (most often a contract of mandate or contract to perform a specific task) as an employment contract could take place by way of a decision issued by a district labour inspector, which employers would have the right to appeal against. If the proposal becomes law, it will certainly encourage employers to carefully review the content of contracts concluded with their personnel, in order to avoid the risk of reclassification. Legislative work on the proposal is still at an early stage, but according to its wording it will enter into force 90 days after its publication.
In June 2021, the Sejm received a bill amending the Labour Code by introducing so-called family leave, which would be granted to employees with at least six months of service (including previous periods of employment). The leave would be granted for up to 12 months in order to take personal care of a close family member (including a parent, spouse, father-in-law and sibling) or a cohabitant who, due to their health status, requires personal care provided by the employee.
The main purpose of the bill is to enable employees to take longer leave to care not only for a child (although, according to the bill, this would also be possible), but also for other relatives. The bill also draws on solutions that have long been present in the Labour Code in the context of parenthood-related leave. For example, as in the case of parental leave, it will be possible to combine family leave with work of up to half-time – then the leave period would be extended proportionally.
In June 2021, the bill was referred for its first reading in the Sejm. However, since then, no legislative work has been undertaken, which may indicate that the future of the bill is uncertain. However, it is important to note that the idea of introducing family leave draws attention to a serious problem of the Polish legal system, namely the lack of any flexible instrument that would allow employees to provide care to family members/loved ones without detriment to their own professional career.
In September 2021, the Sejm received a bill on length-of-service pensions, according to which anybody born after 31 December 1948 with 35 years (in the case of women) or 40 years (in the case of men) of service would be entitled to a length-of-service pension irrespective of reaching retirement age, which is currently 60 and 65 respectively. According to the bill, a length-of-service pension equal to the minimum state pension (PLN 1,250 per month) could be granted. The main objective of the bill is to enable the retirement of people who have not yet reached the statutory retirement age, but who, due to loss of strength, are unable to continue working. The initiator of bill is NSZZ Solidarność (one of the biggest trade unions in Poland). The bill does not seem to have a direct impact on employers, although in practice, if it enters into force, employers should take into account the possibility of the early retirement of their employees and also review their internal regulations concerning, for example, voluntary severance pay, to ensure they are in line with the new regulations.
Changes have been made to social security regulations. On 1 January 2022, the rules for calculating the benefit period will change (discussed in more detail here). A new benefit period will be opened after a 60-day break regardless of whether we are dealing with the same or different sickness units in a given case. In practice, this means that it will be much more difficult for employees to interrupt the incapacity to work, which protects against termination under Article 53 of the Labour Code.
The Polish Deal
The Polish Deal is one of the most hotly discussed topics of the past year. The changes it introduces will have an impact on employers, mainly due to the introduction of solutions aimed at counteracting illegal employment and the non-disclosure of remuneration. For example, according to the new regulations, the uncovering of undeclared employment or the payment of remuneration “under the table” will no longer result in financial burdens for the employees themselves (currently, the employer must cover any non-paid contributions, which can then be claimed back from the employees). Therefore, employers should carefully review the terms and conditions of employment that they offer. The provisions limiting the so-called grey market enter into force on 1 January 2022.
Employers have been waiting a long time for many of the abovementioned changes and, if they come into force, many of them will require the adjustment of internal regulations and the reorganisation of the ways of working. These are not issues to be left to the last minute, so employers should slowly begin preparing themselves for the upcoming changes.
Marta Borówka, Associate