Changes in labour law 2023

In 2023, a lot of changes in the field of labour law will come into force. The new provisions of the Labour Code are primarily intended to respond to the need to adapt Polish law to EU law.

Work is currently underway on two important draft amendments to the Labour Code. This article will discuss the first draft of the amendment concerning remote work and employee sobriety control.

Remote work

The first draft is to regulate the rules of remote work in the Labour Code.

Remote work is to replace the existing telework, which will be deleted from the second section of the Labour Code.

Employers will be able to work remotely on a permanent basis on the grounds of the Labour Code, rather than the current Covid Act. The proposed regulations indicate that the employee will be able to perform duties completely or partially (hybrid mode) outside the company's registered office, e. g. at home, on the basis of an agreement with the employer.

The rules for remote work are to be laid down in agreements concluded with trade unions or in statutes (if no agreement can be reached with the unions or the latter are non-existent in the company).

In exceptional circumstances, such as an epidemic emergency or a natural disaster, the employer will be able to issue an order for remote work on his or her own, but only if the subordinate confirms in advance that he or she is in a position to perform the tasks in this mode.

The Act defines the rules and conditions of remote work, which should be met and regulated in the internal regulations of the organization. It also lays down rules for the payment of remote work costs to employees. To this end, it will be possible to set a lump sum corresponding to the estimated costs to be borne by the employee in connection with the performance of duties from home.

The new regulations will also make it possible to perform remote work occasionally at the request of an employee for a period not exceeding 24 days per calendar year. In this case, there will be no need to comply with certain obligations that the law provides for in the case of traditional remote work (e. g. the obligation to pay the lump sum for increased costs when working from home will no longer be required).

These regulations have already been adopted by the Sejm, and the Senate has introduced amendments to them (e. g. extending the duration of occasional remote work to 30 days a year). They will return to the Sejm, and then — to the President’s signature. They will enter into force two months after the announcement. However, the Senate tabled an amendment extending the vacatio legis to three months. If the Sejm does not reject it, the new regulations will enter into force at the earliest in April 2023.

Employee sobriety control

The amendments to the Labour Code 2023 also imply changes in the scope of the employee sobriety control.

Currently, the employer is allowed to control the sobriety of an employee suspected of being under the influence of alcohol. Amendments to the Labour Code 2023 change these premises.

Employers will be able to carry out so-called preventive controls on the assumption that this will be necessary to ensure the protection of the life and health of the employee or other persons or the protection of property. It is therefore sufficient for the employer to assess that the control is necessary to protect health and/or property.

The introduction of the sobriety control, the definition of the group of employees subject to it and the manner of conducting the control shall be determined in the collective agreement or in statutes or in a notice if the employer is not covered by the collective agreement or is not obliged to establish the statutes.

The rules of sobriety control should include the type of equipment used for the control, the time and frequency of the control. The sobriety control must not affect the dignity and other personal rights of the worker.

The sobriety test shall be carried out with the exception of laboratory methods, and the device used for this purpose must have a valid document confirming its calibration.

At the request of the employee or employer, the sobriety control may also be carried out by a public policy authority empowered to do so. It may also have a laboratory test carried out. This will happen when:

• there is no possibility of non-laboratory testing;
• the employee who is not admitted to work refuses to undergo non-laboratory testing;
• an employee not admitted to work demands a blood test despite the non-laboratory test;
• the condition of the worker not allowed to work prevents non-laboratory testing;
• it is not possible to indicate the alcohol concentration due to exceeding the measuring range of the device used for measuring.

Remote worker sobriety control

The amendment of the Labour Code also includes the introduction of rules for controlling the sobriety of a remote worker. Such a control can only take place if it is announced.

The control of the remote worker shall be carried out in consultation with the worker at the place of remote work during the worker's working hours.

The employer adapts the way of carrying out the control to the place of remote work and its type.

The performance of control activities shall not infringe the privacy of the remote worker and other persons or impede the use of the home premises for their intended purpose.

The most doubtful in practice will be the case where the test shows the alcohol content, but it does not reach or lead to reaching the values appropriate for the state after alcohol use (i. e. up to 0. 1 mg in the exhaled air and up to 0. 2 ppm in the blood). The amendment indicates that such results should be treated as if no alcohol was found in the worker’s system. In such case there's no reason why he shouldn't be allowed to work.

The new rules are provided for in the amendment, which will introduce the aforementioned changes in the field of remote working. However, the sobriety control regulations will come into force sooner — 14 days after the announcement, i. e. at the earliest at the turn of January and February 2023.