Coronavirus – Employment law update – Poland

• Poland

• Coronavirus
• Coronavirus - Country overview
• Coronavirus - Workforce issues

20-03-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by Polish employers.

In a situation of great uncertainty, employers need to focus on maintaining their employees’ trust and confidence by showing leadership; following government guidance; and by acting fairly, reasonably and consistently.

General Principles

Polish employers should:

 

• Monitor and follow advice and guidance from relevant authorities such as the Chief Sanitary Inspector (PIS), who makes recommendations to employers based on the World Health Organisation (“WHO”) guidance; the State Labour Inspection (PIP); and the government
• Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
• Review their need for flexible working.
• Inform their employees and, where relevant, recognised unions about their proposed measures
• Review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
• Review relevant insurance policies and guidance issued by their insurers
• Update contact details for staff and management
• Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19
• Prepare a plan for dealing with employees that report symptoms and may have CoVID-19

 

It should be noted that from 12 March 2020, public and private schools, nurseries, universities and colleges are closed; all mass gatherings are cancelled; and cultural institutions: theatres, concert halls, museums and cinemas are suspended. From 14 March 2020, shops located in shopping malls over 2,000 square meters are closed excluding grocery stores, drugstores, laundries and pharmacies; and all bars, restaurants, pubs, casinos and other similar places of entertainment are closed. Restaurants can, however, sell food for delivery. With effect from 1 April 2020, additional business closures were ordered: hotels (with minor exceptions), hair and beauty salons and construction stores on weekends. Employers affected by the closure/suspension order may not continue their normal business activity.

1. Employer’s duty of care – what does the law in Poland say?

Employers in Poland have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

The Labour Code requires employers to “protect health and life of employees by ensuring safe and hygienic working conditions for them” . This duty includes suitable and sufficient assessment of the risks to the health and safety of employees and anyone else who may be affected by the employer’s business. This duty is a continuing one, and assessments must be recorded. There are specific provisions in relation to young employees and pregnant women.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the Chief Sanitary Inspector and the State Labour Inspection. . This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Due to spread of CoVID-19, the Ministry of Development in cooperation with the Chief Sanitary Inspector has made the following recommendations:

 

• Maintain a safe distance of 1-1.5 metres from others ;
• Promote regular and thorough hand washing when visiting public places using soap and water or disinfecting hands with an alcohol-based sanitiser (min. 60%);
• Ensure that employees, customers and contractors have access to hand washing facilities;
• Place disinfectant dispensers in a visible place within the work place and ensure that these dispensers are refilled regularly;
• Place information on how to wash hands in a visible place;
• Combine this with other means of communication, such as staff training by health and safety specialists;
• Pay special attention to recommendations to NOT touch the face, especially the mouth, nose and eyes with hands, and observe cough and breathing hygiene during work.
• Protective masks are NOT recommended for healthy people. Protective face masks should be worn by sick people, caregivers and medical staff working with patients suspected of having coronavirus infection;
• Make every effort to keep workplaces clean and hygienic
• touch surfaces including desks, counters and tables, door handles, light switches, handrails and other objects (e.g. telephones, keyboards) must be regularly wiped with a disinfectant or wiped with water and detergent; all frequently used areas, such as toilets, common areas, should be cleaned regularly and thoroughly, using water and detergent;
• Limit business trips and overseas travel to a minimum. According to the position of the National Labour Inspectorate, an employee has the right to refuse to participate in a foreign delegation if there is CoVID-19 in the destination country; and
• Promote remote work for people returning from locations with a confirmed CoVID-19 outbreak..

 

As of 2 April 2020, all employers have to provide additional measures for their employees which includes: (i) organizing workspaces in such a way that will guarantee employees at least 1.5 meters space between them; (ii) wearing gloves and ensuring disinfectants. If it is not possible to ensure such distance due to the nature of the business, employers must ensure the availability of personal protection measures related to combating the CoVID-19 epidemic. Employees are still obliged to wear protective gloves, or have access to disinfectant fluids.

Employers must follow the Sanitary Inspector guidelines regarding employees under mandatory quarantine and should prepare guidelines for those who have self-quarantined.

Employees who have returned from areas with a confirmed CoVID-19 outbreak (published on the website www.gis.gov.pl) should self-isolate at home for 14 days after returning and monitor their health (monitoring their temperature , self-observation for flu-like symptoms and a persistent cough). It is recommended that the employer, if possible, promotes remote work from home for employees who return from such areas.

Employers are allowed to implement measures to screen visitors entering their premises, for example requiring them to certify that they have not recently visited a high risk area, have not contacted any person infected with COVID-19 and do not have fever or other CoVID-19 symptoms.

If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in “direct hazard to health or life”.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

Employers should consider implementing policies to minimise the risk of employees catching CoVID-19 in the workplace, for example health screening questionnaires for staff members returning from abroad and delaying or cancelling non-essential business travel and meetings.

The Chief Sanitary Inspector recommends limiting business trips and foreign travels to a minimum. The National Labour Inspectorate has directed that an employee is entitled to refuse business travel abroad if there is coronavirus transmission in the destination country.

From 15 March 2020, all people crossing the Polish border have to undergo a 14-day quarantine in a place indicated by them. If they stay at home, from 1 April all members of their family will be under obligatory quarantine too. They are not allowed to leave the place of their stay. The release from quarantine for neighboring country workers is abolished from 27 March.

Currently, there is a ban on foreign nationals entering Poland. Only foreign nationals working or living in Poland are able to come to Poland, but they will have to undergo a 14-day quarantine period.

The mandatory quarantine period does not apply to those living in Poland or a neighboring country, those who work in a neighboring country or in Poland and regularly cross the border and to professional lorry and bus.

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

3. Flexible working - can an employer require staff to work flexibly?

From 8 March 2020 Legislation made in response to the CoVID-19 outbreak allows employers to order employees to perform, during a specified period, the work agreed in the employment contract outside of the normal place of work (remote work). It is not a mandatory action, but the government is encouraging employers to implement remote working where possible in order to limit the exposure to CoVID-19

Further, employers affected by closure/suspension orders are allowed to ask staff to work from different locations, to work from home or to perform different duties. Otherwise, employers requiring employees to work outside the terms of their existing contracts will have to agree the flexible arrangements with the individual employee, and in some cases with involvement of the union representing the employee. If the individual refuses to agree these changes then, depending on the circumstances, it may be possible to impose them through a process of termination of the current terms with observance of the notice period. If a recognised union is in place then the employer should take legal advice before proceeding to implement changes without the union’s agreement.

When justified by the business needs of the employer, the employee may be ordered to perform other work than that specified in the employment contract for a period no longer than three months in a calendar year, providing it corresponds with the employee’s qualifications and does not result in reduced remuneration.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. The government recommends that employers should encourage employees to work remotely whenever possible in order to limit the exposure of CoVID-19. Where work can be undertaken from home, it may be possible to agree home working for the necessary period.

In other cases, such as site-based work, it may be possible to agree that time away is taken as holiday or unpaid leave. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

However, if site-based work or other work cannot be performed in safe conditions, the employee is entitled to refuse to work in such conditions, without impact on their remuneration.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted. Employees have a statutory right to care leave. Staff may also request flexible working, in which case the relevant statutory procedures would need to be followed.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to sick pay in the usual way. Staff absent from work due to medically-advised self-isolation or quarantine are also entitled to be paid in the same way as sick leave.

Staff members unable to attend work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, will be entitled to care pay in the usual way. Employees can use the normal 60 days of care leave paid by the government (80% of average pay) to care for children below the age of 8 where schools have been closed or where a child below the age of 14 is sick or to care for any other family member that falls sick. In addition, employees are entitled to an additional 14 days of care leave to care for a child below the age of 8 where schools and nurseries have been closed as a result of CoVID-19. The 74 day entitlement is a total entitlement for both parents, irrespective of the number of children and other family members they are caring for.

Employers should decide how they intend to deal with absence scenarios as part of their planning process. If they wish to require employees to use holiday in specific circumstances (for example, where employees have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated to employees in advance.

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work from high-risk areas and training managers to spot symptoms of CoVID-19.

A refusal to undergo a check when there are reasonable grounds for checking the employee’s health (for example, they appear ill or have been in a high risk area) may result in that employee being excluded from the workplace and possibly being denied pay.

Employers can request staff to report if they are infected or have been exposed to infection. However, under data protection law, such information about an individual’s health counts as a ‘special category’ of personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shut down period?

Employers are allowed to request use of outstanding holiday leave.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff

Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details

Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention

Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks

Consider alternatives to travel such as using videoconferencing or webinars

Identify and track employees who are abroad and consider appropriate measures to support them

Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)

Consider any measures necessary to sustain widespread home working

Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility

Consider how temporary shutdowns of premises might be managed

Review their insurance coverage

Consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently.

9. Where can guidance from the Polish government and international bodies be found and monitored?

The Chief Sanitary Inspectionion’s website provides the latest official information of the Polish government on CoVID-19 in Poland - https://gis.gov.pl/kategoria/aktualnosci/

The World Health Organization’s information on the CoVID-19 may be found here:

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Another useful link for employers is:

https://www.gov.pl/web/zdrowie/co-musisz-wiedziec-o-koronawirusie

10. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

11. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

Under current legislation there is no legal obligation for private employers to report any cases or suspect cases of CoVID -19 to local authorities.

If the employee shows CoVID-19 symptoms at work the employer should immediately isolate them, inform the epidemiological station by telephone and strictly follow their directions.