Coronavirus - what should be considered by the employer?

Coronavirus in Poland - everything employees and employers should remember

Temporary home office

According to Article 3 of the Coronavirus Act "In order to prevent COVID-19, the employer may order an employee to perform, for a fixed period of time, the work specified in the contract of employment, outside the place of permanent work (home office)". Thus, the employers are entitled to introduce so called "home office" in connection with the coronavirus threat. It is not necessary in this case to justify this decision with additional circumstances, e.g. the fact that a given employee has returned from an area affected by the coronavirus. This is a general entitlement of the employer applicable to all employees.

At the same time, the Coronavirus Act does not grant employees the right to unilaterally decide to work from home, the decision in this respect remains with the employer.
Importantly, the Coronavirus Act does not regulate the rules for such work. Therefore, it may be necessary to apply the general rules indicated in the Labour Code, as well as the employer's rules applicable to the telework.

Employee's refusal to travel on a business trip to a place affected by an epidemic

The employer's order to travel on a business trip is a work order which, as a rule, cannot be refused by the employee.

Any refusal to perform a formal work order is possible only in special cases. According to art. 210 § 1 of the Labour Code, if the working conditions do not comply with the regulations of safety and health at work and directly endanger the health or life of an employee or if the work performed by him/her threatens to endanger other persons, the employee has the right to refrain from performing the work, notifying his/her superior immediately. Thus, an employee may refuse to travel on a business trip to a place where there is a risk of coronavirus, referring, for example, to recommendations or communications of competent national authorities, such as the National Sanitary Inspectorate or the Ministry of Foreign Affairs.

Private travel of employees

The provisions of the Polish Labour Law do not entitle the employer to verify the manner or place of spending the annual leave. Thus, even if the employer has information about the employee's travel to places affected by the occurrence of coronavirus, the employer is not entitled to prohibit the employee from leaving or to impose another direction on him/her. Neither is it permissible to oblige an employee to provide information about his or her whereabouts during the annual leave – however, it is possible to obtain such information from the employees on a voluntary basis.

Mandatory medical examination of an employee

The law does not expressly provide for a possibility to order an employee to undergo a medical examination due to an increased risk of being infected with virus diseases. Only if an employee is unable to work for more than 30 days, the employer is obliged to ensure that the employee undergoes a medical examination.

However, the jurisprudence of the Supreme Court (judgment of 18 December 2002, ref. I PK 44/02) indicates that the medical certificate of an employee's ability to work, although it remains valid during the period mentioned therein, becomes invalid if during that period there are events which may indicate a change in the employee's health. Thus, the possibility of assigning an employee to a preventive medical examinations has beed accepted.

Nevertheless, the employers are advised to take a cautious approach to this issue. Such a work order by the employer will only be justified if the employee's behaviour and health condition actually indicate that it prevents him/her from carrying out the work or creates a specific risk to the employee himself/herself or to his/her co-workers.
Where this is only a subjective observation by the employer, which does not correspond to the facts, ordering the employee to undergo a medical examination may be potentially considered an abuse of the employer's right.

Mandatory annual leave for an employee returning from annual leave in locations affected by coronavirus cases

The employer cannot oblige an employee returning to work from a location affected by the coronavirus to use his/her annual leave.

The employer is also not competent to isolate the employee in a quarantine.
The employer can only suggest the employee to use his/her annual leave and agree it with the employee.

However, the issue of overdue annual leave is different and should be granted to the employee by 30 September of the following calendar year at the latest. The employer may request the employee to use his/her overdue annual leave - even if the employee does not agree to do so.

An employer's refusal to allow an employee to perform work

The law does not directly grant the employer the right to prevent an employee from performing work in a situation where the employer suspects that the employee's health condition does not allow him/her to perform work properly - despite having valid medical examinations.

At the same time, the law imposes an obligation on the employer to protect the health and life of the employees by, among others, ensuring hygienic working conditions. An employee whose health condition raises concerns may cause a threat to other employees. Therefore, it cannot be excluded that the employees whose health condition raises concerns and whose type of work prevents them from providing work in the form of home office, may not be allowed to work. In such a case the employee's health condition should be confirmed by a doctor at earliest convenience.

Unfortunately, due to the lack of precise regulation in this area, the above does not exclude the potential risk of a dispute with an employee who is not allowed to work. Such actions should therefore be taken in a cautious and non-discriminatory manner.

Governmental instructions to employers

Under the Coronavirus Act, the administrative authorities have been given the competence to issue instructions, decisions, recommendations and guidelines for counteracting COVID-19:

• Voivode - in relation to government administration bodies and state legal persons and local government bodies, local government legal persons and local government organizational units without legal personality;
• Prime Minister at the request of the voivode - with respect to entities other than those mentioned above, including entrepreneurs;
• The General Sanitary Inspector or the National Regional Sanitary Inspector acting on his authority - in relation to all employers.

Orders and decisions shall be executed immediately.

In view of the dynamic development of the situation and the lack of practice in this area, it is currently difficult to indicate how the above competences will be used and what situations they will cover.

Additional care allowance

According to the Coronavirus Act, in case of closure of a nursery, children's club, kindergarten or school attended by a child, due to COVID-19, an insured person absent from work due to the necessity to take care of a child up to the age of 8 is entitled to an additional care allowance for a period not longer than 14 days.

The additional care allowance is not included in the period referred to in the Act of 25 June 1999 on cash benefits from social insurance in case of sickness and maternity

Data protection

Employers' actions to counteract the spreading of coronavirus (COVID-19) may lead to the collection and further processing of additional personal data of employees. In this context, some actions may seem questionable, for example: collecting information regarding recent trips (including private trips), introducing innovative solutions to examine employees' body temperature or obliging employees to keep their employer informed about their health.

So far, the President of the Personal Data Protection Office has not taken any position which would indicate the admissibility or inadmissibility of collecting additional information by employers related to the objectives of preventing the spread of coronavirus. However, it is worth noting that, in line with the position of the Italian and French supervisory authorities, the systematic monitoring of employees' health has been considered as an activity which exceeds the powers of the employer in the context of the provisions of Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)  (“GDPR”).

Polish employers who decide to take action to monitor the health of their employees should take into account the need to guarantee an appropriate legal basis for collecting personal data (including, in some cases, health data). It seems that the prerequisites legalizing the processing of additional information about employees may be the provisions of Article 207 of the Labour Code imposing an obligation on the employer to ensure safe and hygienic working conditions. According to the content of Article 207 § 2 of the Labour Code "The employer is obliged to protect the health and life of employees by ensuring safe and hygienic working conditions with appropriate use of scientific and technical achievements". The applicable regulations also impose an obligation on the employer to respond to the needs of ensuring safety and hygiene at work and to adjust measures taken to improve the existing level of protection of health and life of employees, taking into account the changing conditions of work). Taking additional action by employers in connection with the combating coronavirus may therefore be based on grounds relating to the necessity to fulfil the legal obligations imposed on the controller (Articles 6(1)(c) and 9(2)(b) of GDPR).
Any health monitoring activity should be in line with the general data processing principles set out in Article 5(1) of GDPR. The employer should therefore ensure, inter alia, an appropriate level of transparency and adequacy of the processes involved in collecting additional data on workers. The principle of minimization should also be respected when implementing appropriate mechanisms to combat coronavirus.
It is recommended that the announcements issued in this respect by the President of the Personal Data Protection Office be followed up on an ongoing basis.