March 25, 2020 SPECIAL COVID-19 ISSUE

POLAND - Report

By: Dr. Izabela Florczak, University of Lodz Faculty of Law and Administration, Lodz, Poland

The first patient in Poland with COVID-19 was diagnosed on March 2, 2020. The same day, Polish legislators prepared the Act on Specific Solutions Related to the Prevention, Counteraction and Eradication of COVID-19, Other Infectious Diseases and Crisis Situations Caused by Them (Journal of Laws 2020 item 373) (hereinafter the “Act”). The regulation was promulgated on March 7. The Act sets out the rules for preventing and combating COVID-19. At the time of preparing the article (24 March), subsequent legislative activities were only governmental projects.

1. Remote work

Article 3 of the Act provides for the possibility of instructing an employee for a fixed period of time to work remotely to counteract COVID-19. The employee's consent to this mode of work is not required. The term “remote work” is new in the Polish legal system and its regulation is very limited in its content. It seems that remote work can be introduced for both an individual employee as well as a group of employees or even the entire office. The Polish Labor Code provides that telework is one way of organizing work performance. But remote work is a totally different, exceptional way of organizing the process of work. Unlike telework, the legal regulation of remote work does not specify such conditions for the provision of work as safe and hygienic conditions of work, the manner of accounting for the effects of work, or the way of providing the equipment necessary for its performance. The Act does not grant employees the right to unilaterally decide to work from home; the decision in this respect remains with the employer.

Because not all work can be done remotely, the problem of employees who, due to the nature of work, cannot be obliged by the employer to work from home remains unsolved. If such employees are released from their obligation to perform work due to COVID-19, the employer might be obliged to pay out their remuneration as in the case of the demurrage. Such a remuneration may not constitute less than 60% of the employee's remuneration and the minimum remuneration for work specified in Poland.

2. Additional care allowance

Employees are entitled to use additional care allowance to take time off from work if necessary because of the closure of a child’s nursery, kindergarten, or school. Generally, in accordance with the Act on Cash Benefits from Social Insurance in the Event of Sickness and Maternity (of 25 June 1999), an employee who is released from work to care for a child up to the age of 8 years, or because of the unforeseen closure of the nursery, kindergarten, or school to which the child attends, is entitled to a care allowance paid by the social security fund of up to 60 days per calendar year. The new Act extends the 60-day care allowance by up to an additional 14 days if a nursery, kindergarten, or school closes because of COVID-19. All such schools have been ordered closed from March 16-25, pursuant to the Ordinance of the Minister of National Education of 11 March 2020 on Temporary Restriction of the Functioning of Units of the Education System in Relation to the Prevention, Counteraction and Eradication of COVID. The above extension of the care allowance, however, applies only to parents of children under 8 years old.

The closing period for nursery, kindergarten and schools will soon be extended, which will result in the need to extend the payment period of additional care allowance. It is also anticipated that subsequent legislation will raise the upper age limit of the child on whose behalf this benefit is granted.

3. Governmental projects

The Polish government has issued notices of statutes and implementing acts intended to minimize the negative economic effects of the current crisis. They relate both directly to businesses (e.g. postponing tax payment dates) and the functioning of the labor market. The second group of remedies will be listed below.

3.1. Support for employers through co-financing of remuneration for employees from the Guaranteed Employee Benefits Fund up to 50% the minimum salary but not more than 40% of average remuneration for work. The co-financing will be due to a period of economic downtime or reduced working time (by 20%, but no more than up to 0.5 full-time employment). To get such support the employer must meet two additional conditions. First, an employer must prove that it has paid all employer contributions and taxes by the end of the third quarter of 2019. Second, the employer must demonstrate decreased revenue due to COVID-19.

3.2. Co-financing of part of the employee remuneration costs and social security contributions otherwise payable to the staroste -district administrator], in the event of a decrease in economic activity following the occurrence of COVID-19 during any two consecutive months after January 1, 2020.

3.3. Benefits for economic downtime: the government is waiving the need for employers to pay social security contributions and taxes for contractors and self-employed workers in the amount of 80% the minimum salary if their income has fallen by at least 15% compared to the previous month, provided that the revenue in the previous month was less than 300% average salary.

3.4. Expanding the beneficiaries entitled to additional care allowance to persons caring for the disabled.

3.5. Enabling employers to adopt more flexible rules for determining employees' working time and modifying employment conditions in order to preserve their jobs (limiting uninterrupted daily and weekly rest, introducing an equivalent working time system without having to meet the requirements of the Labor Code).

The last remedy was announced by the President, and its legislative future is exceptionally uncertain. This proposition assumes exemptions from social security contributions for 3 months for self-employed, contractors and micro-enterprises which hire up to 9 employees, if their revenues decreased by 50%.

Dr. Izabela Florczak

University of Lodz Faculty of Law and Administration, Lodz, Poland