The first quarter of 2020 brought new challenges related to the global pandemic. We all had to face them. In a short time, many companies have gone through digital transformation to make it possible for as many employees as possible to work remotely. Not everyone has been prepared for that, both in terms of technology and organization.
Over time, the situation has become a bit more stable, the first shock has passed and we are slowly getting used to the new reality. Employees have equipment and are all given access to company resources, systems and applications. Numerous publications and webinars help choose the best tools for remote work, employee management, efficiency maximization and much more. But have we done everything that could have been done? Maybe some sort of formalization is a good idea?
Home office, remote work and teleworking – how things were before
Home office or remote work are popular terms, often used interchangeably. They are generally understood as work performed outside the company’s headquarters. However, from a formal point of view, these terms did not exist and were unregulated by the Polish law.
The abovementioned forms of professional activity were commonly associated with the IT sector or large international corporations. It seems, however, that they quickly gained supporters on the labour market as already in 2018, as many as 32% of respondents confirmed that their employer allows remote work (Kantar TNS study, The Remote Future. The remote work market and employees’ expectations. Polish Edition from 2018). Options offered by employers in this area were very diverse – from a specific number of home office days a month to remote work only. So how was it possible to introduce something that in fact was not reflected in the legislation?
Here we get to the key word, i.e. teleworking. Not that popular, it is the only term included in our regulations.
Employment in the form of telework is described in Article 67 of the Labour Code (Articles 675 – 6717), which in detail defines the ways of its introduction, its characteristics as well as the rights and obligations of both parties to the employment relationship. Particular attention should be paid to the provisions stating that telework is not the same as a popular and widely understood home office.
Constant features of teleworking include regularity, permanence and repeatability. This does not mean though that the employee must perform their duties only remotely, yet their form of employment should be systematized. For example, a teleworker can work remotely on specific, clearly defined days of the week and come to the employer’s office on the remaining days. Here there is no space for freedom of decision and randomness that are typical for home office when an employee chooses the days they work outside the office. Often, only their maximum number in a month or other billing period is determined. This is a basic, clear difference between the two concepts. At the same time, it should be noted that remote work seems to be a broader term that is commonly used and understood as both teleworking and home office.
Based on the abovementioned regulation, in organizations in which remote work was permanent and regular, teleworking was introduced as a form of employment. This was connected with several obligations such as making appropriate changes in the work regulations, developing various types of documents, implementing appropriate procedures to provide equipment and other tools for remote work or establishing and agreeing on control principles, etc.
In the case of companies in which home office was quite common and employees often and willingly worked from home, it was also decided to introduce internal regulations used to make this process more manageable. Although they did not have a legal force, they constituted an agreement between the employer and employees, defining mutual rights and obligations. In many cases, such regulations were based on the provisions of the Labor Code, with teleworking indicated as the most similar employment form. The provisions contained therein do not apply directly, but it is possible for them to be used accordingly.
In companies where remote work was rare and sporadic, usually no sanctions were imposed and everything was based only on verbal arrangements. This was the least secure option for both parties.
Article 3 of the Special Purpose Act – what to expect?
The previous, already difficult situation has become even more complicated when the Special Purpose Act of March 2, 2020 on extraordinary solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them entered into force.
In Article 3 of this document, a completely new definition of remote work has been introduced into the Polish law. One would like to say that this is sufficient, but it is not as apart from giving the employer the authority to instruct their employee to perform contractual duties for a fixed period of time outside the place of their usual performance (remote work), no further details are included. As a result, countless questions and ambiguity arise. How to issue such instructions? What is meant by a fixed period of time? What obligations does the employer have in this situation?
Based on the provisions of Article 36 of the abovementioned Act, the answer to the question about a fixed period of time seems to be the easiest. The Act does not directly specify the duration of remote work, leaving it to the employer. However, it should be noted that Article 3 of the Special Purpose Act will lose force after 180 days of its entry into force. Therefore, it seems that this is the maximum time for which the employer can instruct the employee to work remotely. Apart from this one guideline, the document does not resolve any other doubts or clarify other issues.
By including this rather laconic provision, the legislator has not imposed any new obligations on employers, which may suggest that apart from issuing appropriate instructions, no other actions are necessary. Looking at it from a purely formal perspective, this may be the case, although it should be remembered that the provisions of the Labor Code have not been suspended. In addition, the reality is that many things cannot be predicted.
One can already come across a great variety of questions related to remote work in social media and online forums. They are asked by both employees and employers, and concern very practical issues. What if I stumble and break my arm while carrying a cup of coffee from the kitchen? Will this be an accident at work? If so, how should the post-accident team inspect the scene? Should the employer provide Internet access required to perform duties? Is the employer obliged to cover some of the employee’s Internet expenses? How to log breaks at work caused by Internet connection failure? Should the employee cover the missed time? Questions, doubts and problems multiply every day.
What next? Is there anything else we can do?
Of course. Therefore, it is worth thinking about spending some time facing this challenge and implementing good practices. Starting from the formal issuance of written instructions, e.g. transmitted via electronic channels, through the development and publication of internal regulations concerning the time of remote work, rules for confirming the presence and availability, transmission and settlement of work results, determining the possibility and methods of communication with the employer and obtaining necessary information, and ending with instructions on how to comply with the rules regulating occupational health and safety. In this way, the employer will increase the level of their own safety in the event of disputes, claims or accidents. The introduction of transparent rules and clear communication will support both the management process and may have a positive impact on work efficiency, but above all it will support employees who are also often in a completely new and difficult situation.
In addition, the employer will prove that they remain professional in any circumstances.
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