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2020-07-06 Selected solutions to counteract negative consequences of COVID-19 for employment
The epidemic triggered by the COVID-19 virus has caused a number of disturbances in our lives. Many entrepreneurs have had to limit or temporarily cease the business activity, which have influenced the existing employment relationships. In order to overcome, at least to some extent, the negative consequences for employers and employees of the crisis triggered by the epidemic, a number of solutions have been adopted which are to allow companies to survive on the market and maintain employment. In this regard, legal provisions called the “anti-crisis shields” have been adopted. As at the date of writing this article three “shields” are in force, and the fourth one is subject to debate by the Sejm.

The adopted solutions were aimed at making employment more flexible and easier, as well as counteracting possible COVID-19 infections of employees. The solutions also provide for financial support for entrepreneurs affected by the negative consequences of the epidemic.

Below I shortly present selected solutions.

The possibility to direct employees to work remotely, i.e. outside the hitherto place of work has already been introduced in the state of epidemic threat. Directing an employee to work remotely takes place through a unilateral decision of the employer and for the period specified in that decision. Such a temporary form of performing work does not require any change of the existing employment contract and it may be applied in every working time system. The employee may be recalled from this mode of performing work at any time.

Such a solution is introduced primarily to limit the number of persons in employment establishments and therefore prevent possible infections among employees.

Employers who fulfil certain criteria (i.a. decrease in economic turnover due to the COVID-19 virus, no arrears in public law liabilities), regardless of the number of persons they employ, may limit the period of uninterrupted daily and weekly rests of the employee, introduce the balanced working time system, apply less favourable employment conditions than those resulting from employment contracts in the scope and for the period agreed with trade unions or appointed representatives of the employees in the mode adopted at a given employer. The said solutions are aimed at making the organization of employees’ working time more flexible in accordance with the current needs while minimizing the number of possible overtime hours and the possibility to violate working time and rest regulations if the need to perform work is periodically higher.

Additional entitlements have been provided for employers responsible for elements of the so-called critical infrastructure (e.g. supply of energy, energy resources and fuels, connectivity, supply of food and water, health care). Such employers may, for a specified period, not longer than until the end of the state of epidemic, change the working time system or schedule in the manner necessary to ensure continuity of the enterprise, direct employees to perform overtime work in the scope and on a working time basis necessary to ensure the continuity of the enterprise, oblige the employee to stay outside of normal working hours in the employment establishment or in other indicated place, request the employee to implement the right to rest in a place indicated by the employer.

Employers who have experienced decreases in the economic turnover due to the COVID-19 virus and who apply for co-financing of employees’ remunerations in order to maintain the employment, may introduce the downtime or decrease the working time of employees (within the limits provided for by the Act) without obtaining a consent from the employees. It is sufficient to conclude relevant agreements in this respect with trade unions or – if there are no trade unions – with employees’ representatives appointed under the procedure adopted at the employer. If the election of employees’ representatives proves difficult, the agreement may be concluded with the representatives previously chosen by the employees for other purposes provided for by the labour law. The conclusion of the agreement results in no need to conclude amendments to employment contracts which are binding for employees. Within the period specified in the agreement, in force are the working conditions which result from the agreement regardless of the contents of employment contracts, collective labour agreements and other acts in the scope of the labour law.

During the epidemic, the obligation to perform periodical medical examinations of employees has been suspended. After the state of epidemic is cancelled, the employer and the employee are obliged to perform examinations within 60 days from the day the said state is cancelled. Preliminary and control medical examinations are still performed. They may be, however, performed under a different procedure. If there is no qualified physician available, a different physician may perform the examination and issue the certificate. The certificate issued in such a manner will expire upon the lapse of 30 days from the date the state of epidemic is cancelled.

The validity of medical certificates within preliminary, periodical and control medical examinations has been extended. Medical certificates issued within the said examinations, of which validity would lapse upon 7 March 2020, remain valid, however, for no longer than 60 days from the day the state of epidemic is cancelled.

The obligation to conduct trainings in the scope of the occupational health and safety (OHS) has been made more flexible. During the epidemic, the preliminary trainings in the field of OHS are allowed to take place via electronic means of communication, except for on-the-job training.

Importantly, subsequent anti-crisis shields have provided for and extended the possibility to receive additional care allowance by employees taking care of children due to the fact that crèches, play groups, kindergartens, schools and other educational establishments have been closed as a result of the epidemic. The proposals to the draft fourth shield provided for such a possibility also in the situation when the establishments have been opened but a child does not attend them and the entitled person takes care of the child personally. The draft fourth shield also proposes that the provisions regarding the right to additional care allowance be in force until 28 June 2020.

At the same time, it has been stated that the persons who cannot perform work due to submitting to the quarantine obligation referred to in the provisions on preventing and fighting infections and infectious human diseases are entitled to the sick pay. Therefore, the quarantine was treated in the provisions on an equal basis with inability to work as a result of illness.

The deadlines to conclude a PPK (Employee Capital Plans) management agreement and a PPK maintenance agreement have been postponed. Thanks to this solution, the employers who have been covered by the Employee Capital Plans Act as from 1 January 2020 have more time to conclude the said agreements. New binding deadlines are as follows: 27 October 2020 – maximum deadline for concluding a PPK management agreement; 10 November 2020 – maximum deadline for concluding a PPK maintenance agreement.

The important aspect for our labour market, which to a large extent benefits from the work performed by employees from Ukraine, is that the anti-crisis shields have provided for i.a. extension of the deadline to file applications for stay permits, extension of visas as well as extension of a stay as part of visa-free travel, if the stay fell in the time of the epidemic, extension of a validity period of an immigrant visa as well as a validity period of a temporary stay permit, and extensions by virtue of law of the validity of an immigrant work permit.

During the epidemic, many employers face the lack of demand for their goods or services, or even inability to operate normally and, consequently, inability to ensure work with normal working time. In such cases, the employers often press employees (not always being entitled to do so by legal provisions) on using due holiday leaves. A positive regulation in this respect for employers has been included in the draft fourth anti-crisis shield. Namely, within the period of the state of epidemic caused by the COVID-19 virus, the employer will be able to grant to the employee a holiday leave unused in prior years of up to 30 days, in the time specified by the employer, without obtaining a consent from the employee and without taking into account the holiday leave schedule. This solution will also allow to prevent the accumulation of current and unused leaves.

It is worth mentioning several solutions of the fourth shield which are to influence a decrease in possible financial burdens of employers. Employees will not always be satisfied with these solutions.

Namely, if the employer has experienced a decrease in turnover in the amount required by the provisions or a significant increase in a burden of a remuneration fund, the amount of a severance payment, compensation, and other monetary allowance paid out by the employer to the employee due to employment contract termination in cases when the provisions provide for the necessity to pay out such allowances, may not exceed 10 times the minimum remuneration determined on the basis of the provisions on the minimum remuneration. This year, the minimum remuneration amounts to PLN 2,600 gross monthly. This solution is to apply not only to employees but also to persons employed on the basis of agency agreement, contract of mandate or other contract for services.

The new provisions provide for a possibility to terminate a non-competition agreement with a 7-day notice which is binding upon termination of the employment contract, the agency agreement, contract of mandate, contract for services, specific task contract. Both parties of the agreement can benefit from this possibility. With this solution, the party obliged to pay to the other party a compensation for refraining from any competitive activities may exempt itself from this obligation (which will result in financial savings) by applying the termination provided for in proposed provisions.

The draft fourth anti-crisis shield have also relaxed obligations concerning the Company Social Benefits Fund in the case of employers who have experienced a certain decrease in economic turnover in the amount provided for by the provisions or a significant increase in a burden of a remuneration fund. Such employers, in accordance with the proposed provisions, will be able to suspend, among others, obligations to establish and run the Company Social Benefits Fund, to make the basic contribution, and to pay out leave allowances.

In conclusion, it is worth mentioning that the regulations as to the manner of performing work in the epidemic conditions caused by the COVID-19 virus have been introduced in order to prevent infections among employees. Unfortunately, not all employees may work remotely during the state of epidemic, which appears to be the safest solution.

Employment establishments are obliged to provide all employed persons, regardless of the basis of employment (so not only on the basis of the employment contract), with disposable gloves or hand sanitizers, and the distance between workplaces should be at least 1.5 metres, unless this is impossible due to the nature of activity performed in a given employment establishment and the establishment in question provide personal protective equipment related to counteracting the COVID-19 virus.

By: Dorota Dąbrowska-Kobus, attorney-at-law