Legal framework of telework – practical solutions for employers Dr. Jacek Męcina

DEFINITION OF TELEWORK ACCORDING TO LEGISLATION Draft definition of telework (new Art § 1) indicates features which make this form of work provision different from work provision within a „classical” employment relationship. Telework is characterised by regular work provision by employee working outside company premises, with the use of electronic equipment in the meaning of the Act on Services Provision with the Use of Electronic Equipment.

REGULATIONS ON TELEWORK APPLICATION RULES If there are no trade unions at the company, and the employer intends to use telework, he should lay down the terms and conditions of using telework in a company regulation, having consulted them with employees’ representatives selected by way of procedure adopted in the company. If there are trade unions operating in the company, application of telework shall require an agreement between the employer and the trade union/unions operating in the company, laying down terms and conditions of telework provision within an employment relationship. The agreement should be agreed and concluded with all trade union organisations operating in the company; if this is impossible, the wording of the agreement should be agreed with representative organisations in the meaning of Art a of the Labour Code. The agreement should be concluded within 30 days of the draft agreement’s proposal by the employer. If the agreement is not concluded within that time, the terms and conditions of applying telework should be laid down in a regulation. In such a case the employer should take into account the solutions negotiated with the trade unions during the agreement negotiation process.

TELEWORK AGREEMENT CONCLUSION PROCEDURE The draft amendment to the Act provides, under Art. 67 7, for two forms in which work may be provided in the form of telework: Indication of telework as the form of work provision, already at the stage of employment contract conclusion (in such a case the contract, apart from its necessary elements provided for under Art. 29 § 1 of the Labour Code, should include provisions laying down the terms and conditions of performing the agreed scope of work in the form of telework). Indication of telework as the form of work provision during the employment contract’s validity period w (in such a case, the parties should conclude a separate agreement on the initiative of either the employer or the employee). During the employment contract validity period, the employer may not require the employee to provide work in the form of telework pursuant to Art. 42 § 4 LC.

RULES APPLICABLE TO DISCONTINUANCE OF TELEWORK PROVISION According to Art either the employer or the employee may request the other party to discontinue work provision in the form of telework and to restore the previous terms and conditions of work provision (this applies to situations in which the employee becomes a teleworker during his/her employment contract validity period – pursuant to At § 1 point 2) The request shall be binding for the other party only if made within 3 months of the telework starting date (date of restoring previous terms and conditions of work provision – no longer however than 30 days as of the request reception date. Submission of the request by the teleworker beyond the 3-month deadline shall not be binding for the employer. The employer after the expiry of the 3-month period, may restore the previous terms and conditions of work provision by way of notice of employment contract change (under the procedure provided for in Art. 42 § 1 – 3 of the Labour Code).

PROHIBITION TO TERMINATE EMPLOYMENT CONTRACT DUE TO RESIGNATION FROM TELEWORK The employer may not terminate employment contract due to the employee’s refusal to provide work in the form of telework or due to discontinuance thereof.

SCOPE OF ADDITIONAL INFORMATION PROVIDED TO TELEWORKER In the case of work provision in the form of telework, the employee, apart from the information referred to in Art. 29 § 3 of the Labour Code and given to all employees, should be given additional information relating to the specificity of this form of work: −Indication of the company’s organisation unit in whose structure the teleworker’s position is located; −Indication of the person or body responsible for cooperation with the teleworker and authorised to inspect the place where work is performed;

EMPLOYER’S OBLIGATIONS To supply the teleworker with equipment necessary for work provision in the form of telework; the equipment should meet the requirements laid down in Chapter IV of Part X, To insure the equipment, To cover costs related to the equipment’s installation, maintenance and service, To ensure technical assistance and necessary training on the equipment usage for the employee.

ADDITIONAL AGREEMENT EMPLOYER - TELEWORKER The employer and the employee may lay down in a separate agreement : insurance scope and usage rules for teleworker’s own equipment meeting the requirements laid down in Chapter IV of Part X and used as equipment necessary for work provision in the form of telework (in such a case the teleworker is entitled to a money equivalent in the amount indicated in the agreement or regulations) rules of communication between the employer and the teleworker, including method of confirming the teleworker’s presence at work, method and form of controlling work performance by the teleworker.

TELEWORKER’S OBLIGATIONS The teleworker has the same obligations as all employees, plus additional obligations necessary for effective performance of work and consisting in: −teleworker’s written confirmation that he/she has read the rules of protecting data made available to the teleworker – the data protection rules are determined by the employer who should also provide relevant instructions and training within this scope if required −giving to the employer data necessary for communicating with the teleworker with the use of electronic communication methods or similar individual remote communication equipment

INSPECTION RIGHTS The employer shall be entitled to carry out, at the employee’s prior written consent, inspections at the employee's private home, with the use of electronic communication equipment or similar individual remote communication equipment, within the scope of : −work performance; −inventory, maintenance, service or repair of the entrusted equipment, as well as its installation, −occupational health and safety The first inspection within the scope of occupational health and safety shall be carried out at the request of the employee.

PROHIBITION OF DISCRIMINATION Teleworker’s treatment equal with all employees – within the scope of employment relationship commencement and termination, terms and conditions of employment, promotion, access to training in order to increase professional qualifications; prohibition of any discrimination on the grounds of performing telework or refusal to perform work in this form.

OCCUPATIONAL HEALTH AND SAFETY The employer, in relation to the teleworker working from home, shall meet all the obligations in the scope of occupational health and safety, except for: −obligation to take care of safe and hygienic condition of rooms (as per Art. 212 point 4), −obligations laid down in Chapter III Part X of the Labour Code (building structures and work rooms) −obligation to ensure adequate hygienic and sanitary facilities (as per Art. 233)

TAX DEDUCTION Pursuant to the amendment of the Act on Income Tax of Physical Persons (Art. 26 clause 13a), costs of the Internet will be subject to deduction from income, also when they have not been refunded to the taxpayer in any form (e.g. cash allowance)

DISABLED PERSONS AND TELEWORK The amendment of the Act on Professional and Social Rehabilitation and Employment of Disabled Persons will make it possible for employers who can not ensure protected work conditions, to employ persons with strong or moderate disability in the telework system.

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