Coronavirus: the labour law and GDPR – information for employers

The coronavirus (SARS-CoV-2) infection spread is now a serious and imminent threat that rises uncertainty among employers, who analyse their rights and obligations in the face of the threat.

Since our Law Firm has received numerous enquiries concerning the epidemiological threat and the related rights vested in employers and employees to counteract the virus spread, in order to satisfy an urgent demand for knowledge in that respect, we present herein most vital information on the matter.

SPECIAL-PURPOSE ACT, or the Act on Extraordinary Measures for Preventing, Counteracting and Combating COVID-19, Other Infectious Diseases and Emergencies Caused by Them

Since 8 March 2020, applicable has been the Act on Extraordinary Measures for Preventing, Counteracting and Combating COVID-19, Other Infectious Diseases and Emergencies Caused by Them. The act determines the principles and procedures for preventing and counteracting infection and spread of the infectious disease caused by SARS-CoV-2 virus in humans.

The new act provides for application of the following measures.

  1. The Employer may instruct the employee to perform, for a fixed term, the work determined in the employment contract outside a permanent place of its performance (remote work),
    • in practice the above means that in order to undertake actions aimed at counteracting coronavirus spread, the employer may order the employee to exercise his/her duties remotely – working from home,
    • it should be borne in mind that remote work is not equivalent with telework regulated in the provisions of the Labour Code. Hence, the employee must adjust to working hours and other terms and conditions determined in the employment contract.
  1. If a crèche, children’s club, kindergarten or school, which the child attends, is closed due to COVID-19, the insured (employee) who is released from the performance of work because of the need to personally take care of the child is entitled to an additional carer’s allowance for a period not exceeding 14 days – in practice this means that people who look after children under 8 years old can take advantage of an additional carer’s allowance. Both parents are entitled to the allowance regardless of the number of children,
    • an additional carer’s allowance introduced under the special-purpose act is to be awarded on the terms and in accordance with procedures determined in the Act on Cash Benefits under Social Insurance in the Case of Sickness and Maternity, and is not to be included in the allowance period – i.e. 60 days in a calendar year,
    • in order to take advantage of an additional carer’s allowance, an employee must provide their insurance premium payer (e.g. an employer, a service recipient) with a relevant statement, while sole traders running non-agricultural business submit such a statement ot the Social Security Agency.

 

EMPLOYEE OR EMPLOYEE’S CHILD’S QUARANTINE, or justified absence from work due to quarantine

Since 28 February 2020, applicable have been provisions of the Regulation of the Minister of Health of 27 February 2020 on coronavirus SARS-CoV-2 infections. Under the regulation, provisions of the Act on Infectious Diseases may be applied to coronavirus.

In practice, the above means that:

  • where an employee is isolated due to reasons provided for in the provisions on combating infectious diseases (e.g. employee’s quarantine due to a coronavirus infection suspicion) a decision of a competent state sanitary inspector issued in accordance with those provisions will constitute a justification of an employee’s absence from work,
  • a decision of a competent state sanitary inspector will constitute the grounds for payment of a sickness remuneration or a sickness allowance.

A decision on being placed in quarantine is issued to a certain person if it is suspected that such a person may be infected or have an infectious disease, or if such a person has had contact with a biological pathogen. The abovementioned decision constitutes the grounds for payment of sickness allowances on general terms (80% of the allowance assessment basis) and should be delivered to the employer of the Social Security Agency after quarantine.

BUSINESS TRIP RELATED RISK, or the employee’s right to refuse a business trip to areas at high risk of infection

In accordance with the guidelines given by the National Labour Inspectorate and art. 210 of the Labour Code, in the event where the working conditions do not comply with the occupational health and safety regulations and pose a direct threat to the employee’s health or life, or if the work performed by the employee brings about such a threat to other persons, the employee has the right to refrain from performing work and must immediately notify their superior thereof.

In practice, this means that the employee, if sent for a business trip to areas at risk of coronavirus infection, has the right to refuse to carry out such an instruction because of an immediate threat to their life or health and the risk of spreading the disease in the country, i.e. exposing other people to danger (however, in a situation where the employee decides to travel to endangered areas, the employer should assess the risk associated with such a trip and provide the employee with appropriate risk mitigation measures related to the possibility of contracting a virus and take actions that minimize the potential risk).

SOLUTIONS FOR EMPLOYERS, or coronavirus-related measures the employer should take

Due to a growing number of confirmed coronavirus infections, employers are considering stopping the works and ordering employees to perform work from home. What measures could be introduced by employers due to the threat of coronavirus spread?

  1. First, under the special-purpose act, the employer may instruct the employee to perform work remotely and to introduce in the employment establishment internal regulations that determine the principles of remote work.
  2. Second, it should be noticed that a remote work is not applicable in all industries – in such a situation considered should be an application of art. 81 of the Labour Code, i.e. provisions on layoff, or to release the employee from the performance of work (with the employee’s consent) with a retention of the right to remuneration.
  3. Third, it should be borne in mind that the employer may not make the employee to use their holiday leave.
  4. Fourth, where there is an immediate threat to employee’s health or life, the employer is required to stop work and to instruct employees to leave for a safe place. Hence, employers are required to monitor the situation on a day-to-day basis in order to be able to make a relevant decision at a relevant time.

 PROCESSING PERSONAL DATA OF EMPLOYEES

  1. In accordance with official recommendations announced in a communique by the State Labour Inspectorate, at present the employer is not entitled to assess the employee’s health on its own.
  2. As transpires from a communique by the President of the Personal Data Protection Office (hereinafter: the “PDPO President”), where applicable is art. 17 of the special-purpose act, whereunder the Chief Sanitary Inspector is authorized to issue decisions imposing the obligation to take specific preventive or control measures, the employer, by complying with the decision, may process employees’ health data. The basis for data processing in such situations will be art. 9 sec. 2 letter i, art. 6 clause 1 letter d of GDPR. The PDPO President did not provide in the communique for other situations regarding the processing of employee data, however, it stressed that provisions on the protection of personal data may not be invoked as an obstacle to the implementation of activities in connection with combating coronavirus. Considering the above recommendations and at the same time the significance of the problem, the employer should assess each situation individually, balance the interests of employees as well as the level of preventive measures taken, and make a decision that will ensure the best safety and hygiene at the workplace.

How can we be of help?

Our Law Firm offers complex advice on all aspects of the labour law. We have long track record of providing professional legal advisory services in that area to biggest Polish and foreign entrepreneurs.

In view of a real threat of coronavirus (SARS-CoV-2) spread and infection, each employer should take preventive measures aimed at an introduction at the workplace of procedures for combating and preventing SARS-CoV-2 virus and preventing the spread of an infectious disease among humans, including the provision of relevant information thereon.

Please contact us if you require legal advice or have questions with reference to the above.

Information contained in this publication is of general nature and does not relate to the situation of a particular company. Due to frequent changes in Polish legislation, we kindly request that you make sure that on the day you are reading this publication the information contained therein is still up to date. We suggest that you consult our advisers before making any decisions.