Labour law updates and recommendations 2022

Latest amendments to labour law

A number of significant changes to Polish labour law are announced in the near future. In part they result from the necessity to adjust Polish regulations to EU law. They include some entirely new obligations for employers as well as changes to existing legal constructions. Below we present some of the key changes.

Protection of whistleblowers

On 18 October 2021, a bill on the protection of whistleblowers, which aims to implement EU Directive 2019/1937, was published. According to the bill, employers with more than 50 employees will have to establish internal reporting regulations, which have obligatory elements (e.g. information about the internal entity authorised by the employer to receive reports and how they should be made) and optional elements, to be included at the employer’s discretion. The regulations will have to be agreed with trade unions or consulted with employee representatives if there are no trade unions active in the company.

Although the deadline for implementing EU Directive 2019/1937 expired on 17 December 2021, Poland has still not adopted the new regulations. A number of public institutions (e.g. the Polish Chamber of Commerce and the Office of Competition and Consumer Protection) and private entities, including Poland’s largest companies, have expressed their opinions on the bill, and one of the key issues raised was that the new regulations should be adjusted to the realities of large enterprises, including by allowing the introduction of a uniform whistleblowing policy across all entities within a capital group.

In the light of these opinions, we expect that an updated bill will be published in the near future. Therefore, we recommend that you refrain from adjusting your internal regulations until the final content of the bill is known.

Amendment of the Polish Labour Code

Major changes to the Labour Code itself are also pending. This is due to the need to implement two EU directives: EU Directive 2019/1152 on transparent and predictable working conditions in the European Union and EU Directive on work-life balance for parents and carers and repealing Council Directive 2010/18/EU.

The most important changes included in the bill amending the Labour Code are as follows:

  • probationary period contracts:
    • the maximum three-month period of employment on a probationary basis remains valid, but with certain reservations:
      • if the employer intends to conclude a fixed-term employment contract for a period of less than six months, the probationary period cannot exceed one month;
      • if the employer intends to conclude a fixed-term employment contract for a period of between six and twelve months, the probationary period cannot exceed two months;
    • the possibility of concluding a second probationary period contract between the same parties will be limited to the situation in which the employee is to perform a different type of work;
  • the employer and the employee will be able to agree that the probationary period contract will be extended by the period of vacation, as well as by the period of other excused absence of the employee from work;
  • the employer’s duty to provide information to employees will be significantly expanded to include information about breaks during work, rules for working overtime, and compensation for overtime. There will also be an obligation to inform employees about promotion procedures;
  • an obligation will be imposed on employers to justify the termination of fixed-term employment contracts, which makes this type of contract less attractive for employers.

In terms of work-life balance, the bill includes the following:

  • extending parental leave from 32 to 41 weeks (with each employee-parent being entitled to 9 weeks of leave, without the possibility to transfer the leave to the other parent);
  • introducing care leave – up to 5 days to provide personal care or support to a family member;
  • changing the definition of a “child” from 4 to 8 years of age, up until which the employer cannot require an employee-parent to work overtime, at night, or in the interrupted working time system, and cannot instruct an employee-parent to work away from his/her regular place of work. In addition, such employees will have the right to request that their work be organised in a flexible way, which includes telework (soon to be replaced by remote work), flexible working time, and individual work schedules.

The bill is currently subject to public consultations. Poland has until 2 August 2022 to implement above mentioned Directives.

Remote working and employee sobriety testing

The Polish government is currently working on a bill to regulate remote work. This will replace the institution of telework, which is currently regulated in the Labour Code. The same bill also includes provisions related to sobriety at work.

Principles of the bill on remote working:

  • work may be carried out entirely or partly at a place indicated by the employee and agreed with the employer in each case, including the employee’s home address;
  • remote working arrangements will be possible at the time of concluding the employment contract as well as during the employment. In the latter case, both parties will be able to request the restoration of the previous conditions of work;
  • the employer will still be able to issue an order to perform remote work in the cases indicated in bill, and will also be able to revoke such an order with one day’s notice;
  • the rules of remote working will have to be set out in an agreement concluded between the employer and the company trade union organisation. If a common position cannot be established, or if there are no trade unions active in the employing establishment, the rules will have to be set out by the employer in the workplace regulations after consultation with employee representatives. If there are no such regulations in place, the employer will have to set out these rules in the order to perform remote work or in an individual agreement with each employee;
  • the employer will be required to provide the employee with, among other things, work materials and tools, including technical equipment, necessary to perform the remote work, cover the costs of the remote work or pay a cash allowance or lump sum, and provide the employee with appropriate training and technical assistance;
  • the employee will be required to declare before starting the remote work that he/she has the necessary premises and technical conditions to perform remote work;
  • the employee will be given the opportunity to work remotely from time to time – up to a maximum of 24 days per calendar year.

These provisions will come into force three months after the day on which the state of epidemic in Poland is lifted. Employers currently have the right to instruct employees to work remotely under the special COVID-19 regulations.

Employee sobriety testing

Draft amendments to the Labour Code also provide for the following:

  • the right of the employer to check the sobriety of employees when necessary to ensure the protection of the life and health of employees or others and the protection of property;
  • the right of the employer to process information about the date of the test and its result, only if it is necessary to ensure the protection referred to above. The employer will be allowed to keep this information in the employee’s personnel file for a period not exceeding one year from the date of its collection;
  • if the check reveals that the employee is under the influence of alcohol, the employer must not to allow the employee to work;
  • in a collective bargaining agreement or in the workplace regulations or in a formal notification, the employer must indicate the group or groups of employees covered by the sobriety check and the manner in which the check will be conducted, including the type of equipment used, the time and the frequency of the checks.

Summary

In the near future, employers are going to face significant changes which will require the adjustment of internal regulations, the updating of templates of documents concluded with employees, and the observing of new parental rights of employees. However, at this moment, it is difficult to predict in what shape the new regulations will come into force.

 

Agnieszka Tarasiuk, Paralegal