50 (145) 2021

Lessons from the Pandemic

Lessons from the pandemic for employers – future good practices

By Bartosz Wszeborowski, Magdalena Profic, Michał Bodziony, PCS Paruch Chruściel Schiffter | Littler Global
Header pcs paruch3

It seems that both employers and employees have already settled into our new pandemic reality. The pandemic has meant that traditional company solutions – whether recruitment processes, training measures or remuneration systems – needed a complete overhaul. Most employers, however, have managed to face the challenges brought by the pandemic. Here are some examples of the lessons learned by employers during the pandemic.

Remote working from abroad

Although remote working is no longer a novelty, it is still an area that is not precisely regulated by law.

To meet their employees’ expectations, employers need to allow remote working abroad. However, travelling and carrying out paid work abroad may incur particular tax and legal liabilities.

Therefore, employers should pay particular attention to the possible consequences triggered by remote working abroad. They may vary from country to country but first of all, employers should ensure to keep on top of social-security requirements. Some EU member states require an A1 certificate for remote working. On the other hand, some countries outside the EU require that social insurance is paid in the host country, which means that a remote employee may even be subject to double taxation. And in some countries, it is also necessary to report the fact of working remotely to the authorities, as well as keeping particular employee records.

An employee working remotely abroad may be subject to the law of the host country in terms of the minimum wage. Therefore, employers should approach this subject with due caution. Employers who fail to comply with certain obligations resulting from remote working abroad may face adverse consequences, including a fine.

Information on vaccination necessary for employers?

Information on vaccination status is considered ‘health data’, which is a special, sensitive category of personal data subject to GDPR. This means that the processing of such data is subject to special rules, and only possible under one of the few exceptions set out in the GDPR. The Labour Code provides that an employer is obliged to organise work in a way that ensures safe and hygienic working conditions, which sometimes mean that it is necessary to know which employees are vaccinated.

Therefore, the basis for the processing of such sensitive data is necessary to fulfil this obligation by the employer, particularly if the risk assessment shows that work involves a risk of exposure to infection which may be further transmitted to other employees.

The Polish Ministry of Health has recently published the objectives of a draft law that will give employers a clear legal basis for obtaining vaccination information from employees, regardless of the GDPR.

The latest draft provides that employers will be allowed to gather information regarding Covid-19 vaccination, active or past infection or negative diagnostic test result for SARS-CoV-2. If an employee informs an employer that they have not been vaccinated against Covid-19 or undergone a SARS-CoV infection, the employer would be able to direct such person to work outside his or her permanent place of work or to another type of work. The Ministry of Health also provides for the possibility to send an unvaccinated employee on unpaid leave. In future, employers will also be allowed to request information on the vaccination or infection history from candidates before entering into an employment relationship with them.

Improving the working-time management system

Remote working undeniably offers employees many opportunities, including more freedom to organise their own working time. However, there is a risk that their working hours are not always entirely devoted to performing work duties. A quick trip to the shop or the doctor's appointment within working hours is a sign of a somewhat relaxed attitude towards work discipline. Remote working also means that employees often do not see the immediate effects of their work or get only some perfunctory feedback in the form of a short e-mail which affects their motivation.

A practical solution to the above issues is introducing a task-based working system, which allows employers to do away with the working time recording duties and reduces the problem of overtime. It also corresponds perfectly to the nature of remote work, giving employees more freedom in combining work duties with other activities.

Notably, implementing a time recording system helps employers to manage tasks more effectively and keep tabs on how employers carry out their work. This is because time recording allows employees to evidence how much time they have spent on particular activities and enables employers to react promptly if any irregularities are detected.

Another solution worth considering is the installation of software monitoring employee activity on equipment provided by the employer. Then employers can control employee working time in many ways, for example by monitoring an employee's computer only when it is logged in to the system or by monitoring laptop inactivity lasting from a few to several dozen minutes.

When introducing such a solution, however, employers must bear in mind that the rules for monitoring employee activity must be properly set out in company work regulations, indicating the objectives, scope and manner of application of such monitoring.

Relations with trade unions

Because of the pandemic and widespread remote working, contacts with trade unions are more frequently carried out by email. It often happens that trade unionists use company mailboxes for their trade union activities, including in their dealings with employees. However, this is usually incorrect, since the employer is free to determine the permitted use of company mail. And trade union activity is not part of the employer's business. The employer is thus entitled to expect trade union members to use their company email exclusively for work-related purposes.

Trade unions' claims that the employer must provide company email for trade union activities under the statutory obligation to make available to the trade unions the premises and technical equipment necessary to carry out trade union activities in the workplace are unfounded. Theh company’s email service does not constitute technical equipment and it is certainly not necessary for carrying out trade union activities. A trade union is a self-governing organisation, separate and independent from the employer and, therefore, should have its own means of communication with the employer and employees. The employer may, but does not have to, allow them to use a company email.

Trade unions also expect employers to hold meetings (for example, for collective bargaining) online. Agreeing to this can very likely turn against the employer’s interest since it is common for trade unions to record such meetings. It also threatens the security of information and personal data. Thus, an employer's agreement to hold a remote meeting should be an exception to the rule of holding meetings in person. The employer can also require the trade union to sign an undertaking not to record online meetings and to keep confidential all information disclosed during the meeting.

E- signatures?

Since the beginning of the pandemic, remote working has also brought challenges for employers in terms of signing the documents by both parties to the employment contract. There are two reasons: often employees do not have a qualified electronic signature and the Labour Code stipulates that certain employee requests must be made in writing. This includes requests concerning working time (such as establishing an individual time schedule for an employee) or parental privileges (like granting parental or maternity/paternity leave).

However, a recently published draft amendment to the Polish Labour Code introduces permanent regulations concerning remote work which will make the above requirements much more flexible.

According to the draft, an employee working remotely (or partly remotely, partly onsite) will be allowed to submit requests also in electronic form. Notably, the regulations do not require such requests to be signed with a qualified electronic signature. This means that an employee's request may be submitted by e-mail or through a dedicated HR system.

The draft does not regulate whether the option to submit such requests is limited only to the period of actual remote working or applies in general to remote employees. In our opinion, an employee who works remotely in any form can submit the request to the employer in electronic form, even while being at the office that day.

Benefits for office workers

As the return to the office causes mixed feelings among employees, employers are contemplating ways to make it more attractive for remote workers. A few solutions have been proposed to make this transition smoother and more appealing to employees. One of the proposals is to differentiate benefits for remote and office workers. The law does not stand in the way of this.

Employees who choose to work in the office can often count on, for example, free fruit at work, or subsidised commuting. Some employers also decide to pay for employee lunches in general or on a given day or for a massage session. Providing such benefits to employees working in the office does not violate the principle of equal treatment in employment, especially if an employer offers all employees the opportunity to work in the office. Then, the employer does not deprive any employee of the opportunity to receive additional benefits. It is only conditional on coming to the office.

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