Employee and employer - rules and documentation of remote work

Rules for remote work (agreement or remote work policy)

Under Labour Code Art. 67²⁰, the employer should set forth the rules for remote work in the following documents:

• In an agreement between the employer and the workplace trade union (or unions)
• In a policy established following consultations with employee representatives—if there are no trade unions functioning at the workplace, the employer may establish a remote work policy unilaterally, but in consultation with employee representatives appointed under the procedure in place at the given workplace
• In the employer’s instructions or the agreement between the employer and the employee—if no agreement was reached with the workplace trade union or representative trade union, and no policy was issued, the employer will specify the rules for performance of remote work in the instruction to perform remote work, or in the agreement with the employee, as the case may be.

Rules for establishing cash equivalent or lump sum for use of the employee’s own equipment

If employees use their own equipment, the employer is required to pay them a cash equivalent.

The regulations do not set the amount of the equivalent, but indicate that in determining it, the following in particular should be considered: the standards for consumption of materials and use of working tools, including technical devices, documentation of their market prices, and quantities of materials used for the employer’s needs and market prices of such materials, standards for consumption of electricity, and costs of telecommunications services.

Important!

• The general rules for performance of remote work, including cash equivalent or lump sum for use of the employee’s own equipment, should be set forth in the agreement between the employer and the employee.
• Materials and working tools provided by the employer, including technical devices, coverage of costs connected with the employee’s performance of remote work, and payment of a cash equivalent or lump sum, will not constitute income within the meaning of the Personal Income Tax Act of 26 July 1991, nor will they be subject to social insurance contributions.

Occupational health and safety regulations and inspection of employees performing remote work

The employer will not be obligated to organize the remote workstation in compliance with occupational health and safety rules and regulations, or to exercise care for the state of the premises and technical equipment. The employer can conduct initial health and safety training online, as well as periodic follow-up training.

Before being admitted to perform remote work, the employee must sign a statement prepared by the employer (in paper or electronic form) concerning occupational health and safety rules, as well as a declaration that the remote workstation at the place indicated by the employee and agreed with the employer ensures safe and hygienic working conditions.

Important! This declaration must contain the employee’s undertaking to comply with occupational health and safety rules.

It is up to the employee to arrange the workstation to reflect ergonomic requirements, and to keep the workspace clean and fit for work.

Under Labour Code Art. 67²⁸, the employer has a right to inspect the employee’s performance of remote work, occupational health and safety matters, and compliance with rules for security and protection of information, including data protection procedures, under the rules set forth in the agreement between the employer and the trade union or representative organization, the working policy, the employer’s instructions to the employee, or the agreement between employer and employee.

Inspections are to be conducted in agreement with the employee, at the remote work site, during the employee’s working hours. The employer should adjust the method of conducting the inspection to suit the place where remote work is performed and the type of work. Inspection activities must not infringe the privacy of the remote worker or other persons, or hinder the intended use of the household space.

Remote work cannot be ordered or agreed in the case of:

• Especially hazardous work
• Work that would lead to exceeding the permissible standards for physical factors specified for residential premises
• Work with chemical agents creating a danger referred to in the occupational health and safety regulations related to the presence of chemical agents in the workplace
• Work involving the use or release of harmful biological agents, radioactive substances, or other substances or mixtures emitting noxious odours, as well as work creating dust or excessive dirt.

On the issue of occupational risk, the employer may prepare a universal assessment of occupational risk for specific groups of remote workstations. Then, before being admitted to perform remote work, the employee must confirm in writing or electronically that he or she has reviewed the professional risk assessment and the information concerning occupational health and safety rules for performing remote work, and undertakes to comply with them.

The professional risk assessment should contain information concerning:

• Rules and methods for proper organization of the remote workstation, taking ergonomic requirements into account
• Rules for safe and hygienic performance of remote work
• Actions to be performed after completion of performance of remote work
• Rules for proceeding in emergency situations creating a danger to human life or health.

On-the-job accidents when performing remote work:

In the case of remote work, employers will have to apply as relevant the Labour Code provisions concerning work accidents set forth in Art. 234 §1 and 237 §1(1)–(2). The employer should conduct an inspection of the accident site after an accident during remote work is reported, within a time agreed by the employee, or a household member if the employee is unable to agree on a date due to the employee’s health condition, and members of the post-accident team.

The post-accident team can waive the inspection of the site of an accident during remote work if the team finds it has no doubts about the circumstances and causes of the accident (Labour Code Art. 67³¹ §10).

The Social Insurance Institution (ZUS) will decide questions of payment of accident insurance benefits and whether the employee is entitled to such benefits. ZUS will also decide whether the accident was caused by the employee intentionally or as a result of gross negligence.

If an accident occurred during remote work by an employee under the influence of alcohol, narcotics or psychoactive substances, and the employee significantly contributed to causing the accident, medical documentation will be required before awarding accident insurance benefits.

Regulations for assigning and paying for overtime during remote work

Under the regulations governing remote work, for the purpose of assigning overtime work and calculating overtime pay, overtime work by remote workers should treated as if it were performed at the workplace (Labour Code Art. 151 and following).

Business travel and remote work

Assignment to remote work does not in itself constitute a change in the permanent place of work, but only enables work to be performed at a place other than the permanently fixed location. As a rule, if an employee working remotely is instructed to visit the office, it will not constitute business travel.

Where to store requests for remote work?

The Regulation of the Minister of Family and Social Policy of 6 March 2023 (Dz.U. 2023 item 471) amending the Regulation of the Minister of Family, Labour and Social Policy of 10 December 2018 on Employee Documentation (Dz.U. 2018 item 2369), which entered into force on 7 April 2023, expands section B of the personnel files to include documents concerning performance of remote work.

These documents should be stored in section B of the employee’s personnel file. If the employer maintains personnel files in paper form, and receives a document in electronic form, the employer should print it out and certify that it conforms to the document submitted electronically.