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2020-03-26

Limit of three days as to inform the employer on being under quarantine, remote work, personal data of employees and candidates for work. All of this reviewed in the context of the COVID-19 epidemic. We have prepared a set of answers to the most frequently asked questions of employers – updated as of 25 March 2020.

 

Q1.           What are the employee’s obligations towards an employee if he/she has crossed the border and therefore has been directed to mandatory quarantine?

 The employee should immediately inform the employer about the quarantine he/she is subject to. The Regulation introducing the state of the epidemic[1] indicates that the employer should be notified 'remotely' via communication tools. Nothing stands in the way to provide such information by text message or e-mail.

 Q2.           What obligations do employees have when the quarantine is over?

 The employee should remember to provide the employer with a written statement that confirms he/she was under quarantine. This duty has to be fulfilled within three days after the quarantine ends. An example of statement is available on the Social Insurance Fund (ZUS) website. Similarly, information in this respect should be submitted electronically. It is recommended the employer collects such statements as to ensure overall correctness having in mind future settlements, inspections and records.

Q3.           What changes are envisaged by the amendment to the Regulation introducing a state of epidemics[2] with regard to the quarantine obligation?

The amendment provides that as of 27 March 2020, employees performing their professional activities in Poland or in a neighbouring country, will have to undergo a 14-day quarantine. The amendment removes so far existing exception stipulated for this group of persons.

Another change is that since 27 March 2020, an employee crossing the border in order to perform professional activities in Poland or in a neighbouring country, may apply for a certificate which confirms that they are subject to a mandatory quarantine. Such a document will be issued by the competent sanitary inspection authority at the employee's request.

To sum up, as of 27 March 2020 exempted from the quarantine obligation will be exclusively sea and aircraft crews, drivers of international transport, soldiers and Police, Border Guard, Fire Brigade and State Protection Service officers.

Please note that a sanitary inspector competent for the place of residence or stay of a person subject to the quarantine may fully exempt him/her from the obligation to undergo quarantine or shorten its 14-day duration, if there are any justified reasons.

Q4.           Is it possible to oblige an employee to take a leave if he or she is a roommate of person being quarantined?

You cannot oblige an employee to take his/her current leave. However, if the employee is able to work, then he/she can be commissioned to the remote work. Also the outstanding leave may be granted regardless of the employee’s consent.

Q5.           Is the employer obliged to adapt the employee's workplace to remote work that is performed from home, e.g. by providing desk lamps, additional monitor and other IT equipment, and to pay or participate in the costs of Internet connection (if the existing one is too slow)?

Currently there is no such duty, but it can be implemented by the employer and serve as a good practice. It is recommended to consult a tax advisor if you wish to participate in related fees or costs.

Q6.           While recruiting a foreign employee (EU citizen) will we encounter obstacles related to closing the border / quarantine obligation?

The EU citizen employee must demonstrate that he/she is working in Poland (an appropriate letter from an employer is required). After crossing the border he/she will be subject to a quarantine.

Q7.           Is the employer obliged to provide personal protective equipment, disinfectants etc. in case of remote work performed from home?

There is no such obligation.

Q8.           While recruiting, can the employer ask whether the candidate was abroad, had contact with someone who came back from abroad, or is he/she under quarantine?

Yes, you can. It is the employer's duty to ensure safe and safety work conditions. The proportionality and data minimization principles are particularly important here. The employer should require information related to health only to the extent necessary to counteract COVID-19, at the same time taking into account the rules arising from the Labour Code.

Q9.           Is it the employee's duty to inform the employer (or is it the employer's right to ask) where exactly the employee performs remote work?

Yes. The employer instructs an employee to perform work in a specific place, e.g. at home. The employee may not individually change this place. Working remotely is not possible if the employee has no conditions at home to work. In such a case the employer can indicate another place. If this is not possible, the employer will be able to require the employee to come to work or will release the employee from the obligation to perform work.

 Q10.        Would it be illegal to check the temperature before entering a building?

It would not be if it is justified by the circumstances of the case and is carried out in accordance with the rules arising from the Labour Code.



[1] Regulation of Ministry of Health on introducing the state of epidemic of 20 March 2020 (O.J. 2020, item 491).

[2] Regulation of Ministry of Health amending regulation on introducing the state of epidemic of 24 March 2020 (O.J. 2020, item 522).

2020-02-18
Author:

Recently we have celebrated Saint Valentine's Day what gives a great opportunity to consider whether “love contracts” between employees can work under Polish labor law and be included in employees’ records. 

The workplace is almost a second home to countless employees. Inevitably, long working hours foster romantic relationships with colleagues. When we enter the workplace, the boss is legally entitled to manage our daily working routine, evaluate our work performance, and assign tasks, but cannot control or prohibit dating with an officemate or next-door colleague. To be clear, the employer is not entirely helpless in this area. If an employee performs poorly and neglects duties because “love is in the air,” or the relationship severely hinders the normal work process, then the employer can penalize the employee under the rules provided in the Labor Code or consider terminating their employment contract. On the other hand, a Polish employer might also consider applying the useful tool called a “love contract,” also known as a Cupid contract or consensual-relationship agreement, which appears to be commonly accepted and respected in US legal practice. This idea might be of help when things get messy—or to say the least, complicated—between former lovers. A Cupid contract may serve as evidence in litigation and possibly offer some protection against sexual harassment claims.

"We, the undersigned, agree as follows:”

The key idea of the Cupid contract involves mutually agreed statements provided by employees in an office romance, where they establish the terms and conditions of their relationship with regard to their daily work performance. First of all, both “partners in crime” should promise that their private relationship will not interfere with their assigned duties or the quality of the tasks they perform, that their projects and work commitment will remain the same, and that they will maintain the professionalism required at the workplace—also if the relationship breaks down. Another suggested clause is for the employees to declare that they are familiar with the company’s policy against sexual harassment (and this policy can be incorporated into the love contract). They may also state that as of the time they are signing the contract, there have been no abusive acts such as harassment, threats, intimidation, stalking, or physical violence. It should be made clear that neither party was forced to enter into the relationship as a result of organizational dependence, i.e. that the affair was established and continues with mutual consent.

The document may be addressed to the employer and must be signed by all parties involved. There is nothing preventing inclusion of more detailed provisions suited to the particular situation and the specific work environment. These could be for instance a declaration that neither party will interfere or decide on promotions, bonuses, pay increases, or working conditions of the other party, and that the transparency and equal treatment policy will apply to both parties. At this point it would also be handy to lay out the company’s guidelines and internal rules governing business relations with clients and colleagues (e.g. no public displays of affection). Additionally, when an affair arises between employees assigned to different teams or departments, it would be a smart idea to establish rules for the flow of confidential information, if necessary. Having in mind the human nature of falling in love, looking ahead, it may be helpful to include a statement acknowledging that ex-partners will respect the right of the former partner to date another employee.

It is also possible to include a declaration that the employees will not file sexual harassment claims if the relationship turns sour, and the Hollywood rom-com twists into a melodrama. However, such a provision will not completely foreclose court proceedings, but should serve as a polite suggestion to refrain from seeking revenge by initiating litigation. Daily practice provides numerous examples of schemes where a dumped, heartbroken employee decides to sweeten the pill and take revenge on an old flame by alleging sexual assault. In this dramatic scenario, the employee tries to demonstrate that the courtship and sexual relations were in fact unwelcome, and “consent” was granted under duress because of fear of dismissal, possible troubles with promotion, or discrimination. A Cupid contract may serve as solid evidence against such speculations and protect both the employer and the employee from liability.

Is Polish labor and data protection law ready?

A Polish employer wishing to protect itself against the risk of being accused of abuses occurring in the workplace may consider following the Cupid contract trend. But the question of whether to introduce a practice of collecting written statements revealing private affections between employees should be carefully analyzed. Certainly, any such agreements would be made only for the purpose of regulating the situation in the workplace, and only essential data should be processed due to the purpose-limitation and data-minimization rules in the General Data Protection Regulation. Therefore, a separate analysis is essential to determine whether the employer's possession of information on employees’ intimate relationships suits the purpose of preventing sexual harassment (as well as other legitimate purposes such as furthering performance of the employer’s other duties, e.g. combatting workplace harassment, developing social norms, and especially respecting the dignity and other personal rights of employees).

For this reason, when determining the final wording of a love agreement, data protection law must be considered, along with the employer’s interest. Such a statement, suitable and tailored to the Polish legal environment, should be included in part B of the employee’s personnel files, as it potentially concerns the individual’s employment history. Information on an intimate relationship with another employee naturally entails disclosure of “special” personal data, which includes data on sexual orientation. Under the Labor Code, processing of such data is permitted only if the employee provides such information at his/her own initiative. Disclosure of such information to the employer is voluntary, and thus the employer cannot under any circumstances force a couple to sign a Cupid contract. Considering the possible adoption of this or a similar solution, the data protection aspects must be carefully examined, as the requirements imposed by EU law are challenging.

Up-to-date employer?

However the employer catches wind of an office fling, it does not change the voluntary nature of such love pacts. As already pointed out, the employer cannot force a couple to sign such a statement, although it can certainly encourage them to do so and explain the benefits it brings to the parties (with protection against unfounded accusations being the most persuasive). It is also a win-win situation for the boss. An open-minded employer supportive of dating employees may be perceived as an attractive and up-to-date firm. Such an attitude, rather than throwing up roadblocks, can create a positive brand image. While adopting a romance-friendly attitude, an up-to-date employer should act in a way that truly respects and facilitates employees’ choices, if it wants to be perceived as competitive on the current labor market. Millennials in particular expect great flexibility in how they perform their daily work.

Not everyone is a fan

Not everyone supports the notion of involving the employer in the knowledge that employees have been struck by Cupid’s arrow. Some find it too intrusive and devastating to employees’ right to privacy. Employees may not be eager to confess, especially if it is a secret affair and they are married or in other relationships. Difficulties abound if employees oppose the employer’s proposal to sign a love contract. Certainly it will cause awkwardness in their relations. Moreover, introducing the practice of signing love contracts, suggesting that the employer condones office romances, can be perceived as encouraging situations giving rise to conflicts of interest within the workplace. Last but not least, the HR department may be reluctant to act as the “morality police” and assume the additional duties of handling Cupid contracts.

Food for thought

The idea of love contracts protecting the employer’s interests against possible abuses and allegations from employees, although not flawless, is still worth considering. Whether Cupid contracts become commonly used under Polish law remains to be seen. Today’s labor-market trends show the importance of creating a positive and employee-friendly image of the company, suggesting that dating employees should be embraced rather than dismissed. The debate on consensual love contracts indeed offers a great opportunity for HR departments to review their existing internal anti-discrimination rules. Also, a legal check is needed to verify that the employer is duly combatting all forms of sexual harassment and discrimination in the workplace. Finally, it should be stressed that although Cupid contracts can mitigate the risk of sexual harassment claims, they cannot take the place of an effective sexual harassment prevention program.

2018-06-13

monitoring w miejscu pracy

As of 25 May 2018 the new provisions of the Labour Code are in force, which regulate surveillance at place of work and new obligations of the employer related thereto.

Video surveillance can be used in order to ensure safety of employees, security of property, control over manufacturing process or keeping confidential information, which if disclosed could expose the employer to damage. The surveillance of emails and other types of surveillance can be used, if it is necessary to ensure such organisation of work which enables full use of working time, or proper use of work tools or equipment entrusted to the employee.

The legislator has also introduces provisions ensuring protection of personal interests, in particular confidentiality of correspondence and privacy of employees, among others by prohibiting surveillance in wash rooms, canteens, locker rooms or premises used by trade unions.

The new provisions also impose certain new obligations on the employers. This concerns first and foremost introducing to the workplace regulations (or collective bargaining agreement) provisions setting out the purpose, scope and manner of surveillance.

This obligation concerns also these employers, who are not obliged to adopt workplace regulations – such employers should address these issues in an internal announcement. Employees should be also informed two weeks in advance about planned launch date of surveillance.

Furthermore, the notification obligations extend to all new employees, as well concerns visibly designating premises in which surveillance is carried out.

The new provisions determine how long can the employer keep the records of surveillance and what should be done with them.  

The new regulation is relevant, because it specifically addresses the issue which for number of years was present in day to day practice and frequently caused practical difficulties. Simultaneously, to the large extent, the new provisions are coherent with good practices of employers concerning surveillance at the place of work.  In connection with implementation of the new regulation, the employers are obliged to update the workplace regulations or to carry out the aforementioned information obligations.

2018-02-05

On 8 January 2018 the latest version of the draft of the Act on Transparency of Public Affairs was published. The bill introduces provisions on protection of whistleblowers and obligations in terms of implementation of compliance procedures, which will be applicable to all medium and larger business entities regardless of the type of industry or business.

Whistleblower

Any employee, public official, soldier, self-employed individual or individual hired under non-employment contract can receive the status of a whistleblower. The decision is in hands of a prosecutor if credible information is disclosed by the individual, concerning  specific crimes such as bribery, organized crime, forgery of invoices, fraud, credit scams, securities fraud, money laundering, corruption related to production and sales of drugs and medicines and others.

Protection of whistleblower

Once the whistleblower status is granted, the employer will not be able to dismiss a whistleblower employee without the consent of the prosecutor running the case. The same rule apply to non-employees whistleblowers.

The bill also provides for an obligation to obtain the prosecutor’s consent to unilaterally change the conditions of contracts to the detriment of whistleblowers.

The prosecutor should decide whether to consent to a whistleblower’s dismissal within 30 days from receiving motion in this regard.

The protection extends during the entire period of the criminal proceedings, as well as one year after termination of the proceedings. So in practice the period of protection may last for several years.

Damages

In event that whistleblower’s contract were terminated or changed without the consent of prosecutor, the whistleblower would be entitled to damages. Depend on the type of contract held by the whistleblower and the damages can amount to (i) twice the annual salary of a whistleblower employee or (ii) the total amount payable to a non-employee whistleblower pursuant to the parties’ contract from the date of termination of the contract through the end of the stated term of the contract.

Absolute protection

The protection afforded by the bill to whistleblowers would in practice be broader than any other type of protection afforded by the labor law, even comparing to protection of pregnant employees or employees at pre-retirement age. Moreover, the protection is not canceled by commencement of liquidation of the employer or declaration of its insolvency aimed at liquidation.

Ethics and anticorruption polices / compliance

Moreover,  it is important to point out that every medium and larger business entities regardless of the type of industry or business should introduce internal anticorruption policy and procedures in their organization. Anticorruption procedures should consist of organizational and technical measures and HR solutions. What is significant, anticorruption procedure should be applied in a way which guarantees its effectiveness and enforcement. Thus, this internal act should prevent from arising anticorruption mechanisms in organization and provide anticorruption trainings. It is also necessary to apply the code of anticorruption with declaration rejecting corruption signed by employees and business partners. Anticorruption clause shall be included in contract terms. Your anticorruption procedures to prevent bribery must include gift and hospitality provisions. When  assessing the condition of effectiveness and enforcement of anticorruption procedure it is curtail to validate whistleblowing system.

In case of corruption event occurs, and prosecutor has charged allegations, Polish Central Anti-Corruption Bureau will be empowered to investigate whether anticorruption procedure were implemented in effective manner. After the investigation Polish Central Anti-Corruption Bureau Chef may prepare a motion for fine up to 10 000 000 PLN, addressed to Office of Competition and Consumer Protection.  Business entity may pay fine before the decision is issued by Office of Competition and Consumer Protection. Entrepreneur which was fined by Office of Competition and Consumer Protection may not take part in procedure regarding the award of public procurement for a period of five years.

Wierzbowski Eversheds Sutherland may assist with preparation of anticorruption policies and procedures. We also help our clients in the process of implementation of effective whistleblowing systems in cooperation with E-nform – specialized IT solutions provider.  

2017-10-10

blog wierzbowski eversheds sutherlandAt the end of May 2018, the European General Data Protection Regulation will replace the current directive regulating this issue as well as the current Polish Personal Data Protection Act. The changes will also impact laws of the processing of personal data of employees. The draft of the Act – Provisions introducing the new general data protection act was published on 12 September 2017.

The amendments to provisions concerning the processing of personal data of employees were long expected by employers. The current legal status has often failed to meet the demands and realities of the contemporary employment relationship. Also, the conservative judgments of some courts which challenged the legal effects of the employee's consent to the processing of certain personal data were not helping.

Current legislation, specifically art. 22 (1) §1 of the Labor Code provides that the employer may require the job applicant (or employee) to give his full name, parents' full names, date of birth, place of residence and address for correspondence, education, current employment history.

In addition, §2 of this Article allows the employer to request other personal data of the employee, such as the names and dates of birth of the employee's children, if such information is required because the employee is exercising special entitlements under the labor law. In addition, the employer may also request the PESEL number.

In the case of other personal data, the Labor Code allows their request, provided that the obligation to supply them to the employer results from other provisions of the law.

The planned changes largely meet the expectations of employers, inter alia, by updating the list of data that can be requested from employees. Pursuant to the new art. 22 (1) §1 of the Labor Code, the employer will still be able to require: employee's full name, date of birth, address for correspondence, education, current employment history. The novelty is to add an email address or phone number to this list, while removing the name of the employee's parents.

Moreover, if the employee does not have a PESEL number, the employer will be able to demand the type and number of the employee's identification document.

However, the most important change will result from the newly added art. 22 (2) §1 of the Labor Code. This provision expressis verbis allows for the processing of other data of the employee or job applicants, than those listed in art. 22 (1) §1 and 2, if the employee or the job applicant agrees to it in writing or electronically and simultaneously, if the data relates to the employment relationship. In the case of biometric data, the employer will be able to process them if they relate to the employment relationship and only with regards to employees, and therefore not to job applicants. The processing of biometric data will be subject to the consent of the employee. The exception to this new rule will be personal data relating to addictions, health, sexuality and sexual orientation of an employee or job applicant. The employer will not be allowed to process this data, even if the employee (job applicant) has consented to it.

Another novelty in the Labor Code will be art. 22 (4), which will provide a legal basis for monitoring employees. Pursuant to it, the monitoring can be used to ensure the safety of employees, or to protect property, or keep confidential information disclosure of which could expose the employer to damages. It is prohibited to use monitoring in order to control the performance of work by employees as well as to monitor rooms where work is not carried out, e.g. sanitary rooms, locker rooms, canteens or smoking rooms.

One may have doubts as to the manner in which the provision prohibiting monitoring in non-work premises was formulated. While it is reasonable for sanitary and locker rooms, monitoring halls and corridors, entries and exits, to and from the rooms and buildings as well as canteens and smoking rooms is rather not an overly intrusive interference into the employee’s private sphere. On the other hand the lack of monitoring capabilities in these locations can create serious gaps in the protection systems used by employers.

The envisaged changes are currently being worked out at the Ministry of Digitization. This is only the beginning of the legislative path, so it is difficult to predict whether they will come into force in the current shape. It may now be assumed that the new provisions should be in force in May 2018, as the new European General Data Protection Regulation is planned to come into effect at the end of May.

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We discuss the current labour law, legal judgments and interpretations issued
by the National Labor Inspectorate and the Polish Ministry of Labour and Social Policy.

 

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