Labour law updates and recommendations 2022

Remote work – when there is an accident at work?

In connection with the COVID-19 pandemic, employers have been given the possibility of temporarily instructing employees to perform their work away from the workplace. This so-called home office will probably continue after the pandemic, as the bill introducing remote work permanently into the Labour Code has already been through the consultation process and is currently awaiting verification by the Legal Commission (assessing the draft from a legal, legislative and editorial point of view), after which it will be passed on to the Council of Ministers and the Parliament.

However, there are still no clear regulations addressing this issue and it is difficult to predict when the above mentioned bill will become law. For this reason, employers have to ensure the safety of their employees themselves, and they are increasingly using internal remote work regulations that govern the principles and appropriate conditions for this form of work. Due to the large-scale implementation of remote working, many doubts have arisen in relation to its organisation – one of them being the classification of a given event as a remote work accident.

An accident at work is considered to be a sudden event caused by an external factor resulting in injury or even death, which took place in connection with work, during or in relation to the employee’s normal activities for the employer.

Analysing the above definition, in the context of work away from the office, it should be emphasised that the employer’s instruction to perform remote work does not affect the legal status of the employee in any way. Therefore, in the event of an accident, the employer’s actions should be exactly the same as in relation to an employee performing work in the workplace.

With this in mind, the employer, regardless of where the accident occurred, should proceed with a post-accident investigation. For this purpose, a post-accident team is appointed, which should make an inspection of the place of the accident, acting with respect for the employee’s right to privacy. The date of the inspection should be agreed with the employee and the inspection should be as short as possible. The employee may refuse to allow the post-accident team to visit his/her home, but in such a situation he/she must take into account that this will prevent the effective conduct of the investigation and consequently the recognition of the event as an accident at work.[1].

If the investigation shows that there was a connection between the accident and the performance of remote work, it will be classified as an accident at work. In practice, proving this connection is very difficult. However, it is recognised that taking short breaks from work, for example to drink coffee or to heat up a meal, have an indirect effect on the performance of work and should be considered as being related to remote working. On the other hand, activities such as vacuum cleaning or washing the dishes during remote working hours, as well as attending family gatherings, exclude the possibility of an incident being considered as an accident at work.

The relationship between an employee’s activities and the fact of his/her remote working was the subject of a judgment by the German Federal Social Court in December 2021. In this case, an employee working from home, on his way from his bed to his desk, fell over and broke his back. The German Court classified the incident as a work-related accident and awarded the employee compensation. The Court’s justification was that the first morning journey to work is subject to protection irrespective of where the work is carried out.

This judgment shows that every situation should be assessed individually, by looking at the link (if any) between an employee’s activity and the performance of work – the type of activity itself being much less important. Time will show whether Polish courts will take a similar approach in interpreting existing regulations.

It is also worth mentioning that recognition of an event as a remote work accident does not guarantee the employee compensation. If the employer proves that the sole cause of the accident was the employee’s proven breach of regulations concerning the protection of life and health, caused by the employee intentionally or due to gross negligence, or the employee, being under the influence of alcohol or drugs or psychotropic substances, significantly contributed to causing the accident, the employee will not be entitled to any compensation.[2]

Finally, a key issue concerning remote work accidents is the employer’s obligation to ensure healthy and safe working conditions and the difficulties that have arisen in this respect since the beginning of the COVID-19 pandemic. It is common practice to shift this obligation to the employee who is working remotely, i.e. to require him/her to sign a declaration before starting to work remotely concerning, among other things, that he/she has accommodation and technical conditions that make it possible to work remotely while observing health and safety regulations. However, the question of how the employer can verify an employee’s working conditions or whether the employee has to guarantee the appropriate size and arrangement of his/her place of residence is yet to be resolved.[3]

To sum up, there is undoubtedly a need to define the regulations related to remote work as quickly and precisely as possible. With the increasing practice of using home office during the pandemic, there are more and more questions in this regard.  The problem of the lack of regulations is reported not only by employers, but also by the State Labour Inspectorate, which has indicated that there is a need to regulate the conduct of inspections in the private homes of employees in connection with the investigation of accidents at work and compliance with health and safety regulations[4].

 

Justyna Helbing, Intern

 

[1] J. Żołyński, 3. Accident during remote work [in:] Remote work in the Polish legal system, ed.M. Mędrala, Warsaw 2021. https://sip.lex.pl/#/monograph/369494768/80/medrala-malgorzata-red-praca-zdalna-w-polskim-systemie-prawnym

[2] J. Żołyński, 3. Accident during remote work [in:] Remote work in the Polish legal system, ed.M. Mędrala, Warsaw 2021. https://sip.lex.pl/#/monograph/369494768/80/medrala-malgorzata-red-praca-zdalna-w-polskim-systemie-prawnym

[3] K. Barszczewska, OhS in remote work, PPlus 2021, No. 6, pp. 112-115. https://sip.lex.pl/#/publication/151387065/barszczewska-karolina-bhp-w-pracy-zdalnej

[4] Remote work in the forum of the Labour Protection Council, Article 18.03.2021 – https://www.pip.gov.pl/pl/wiadomosci/123072,praca-zdalna-na-forum-rady-ochrony-pracy.html