The draft first amendment to the so-called COVID-19 (Extraordinary Measures) Act
On Friday 13th March 2020, the Senate approved the draft first amendment to the so-called COVID-19 (Extraordinary Measures) Act, which we discussed in our last webinar. Currently it is only a draft so it will need to pass through the entire legislative procedure (Sejm -> Senate -> President). Considering that the draft was approved in the Senate thanks to the opposition’s votes (while the governing party’s senators voted against it), it is difficult to predict what will happen next. Nonetheless, it is advisable to familiarize yourself with the draft legislation and to prepare for possible changes. It is possible that some solutions may form part of the so-called protective package which the government has promised.
Last Friday evening (13.03.2020) the government also officially declared an epidemic emergency. This results, among others, in a significant limitation on many employers’ business activities.
The most important issues for employers are summarized below.
1. Teleworking
• Teleworking (or remote working) will be performed instead of the kind of work defined in an employment agreement (as opposed to any work whatsoever) and will be acceptable only if it is objectively possible (e.g. it won’t be possible for production staff).
• The place and hours of teleworking must be agreed with the employee.
• Telework organization and order should be specified in employment regulations or the employer’s instructions to perform telework.
• The employer is entitled to monitor telework and to request that an employee provides information about work results.
SSW’s comments / recommendations:
• The duty to arrive at an agreement with an employee about the place and hours of teleworking will be problematic if an employee objects. In our opinion, unless there are legitimate reasons for doing so, an employee should not refuse to agree on the aforementioned matters with the employer.
• Employers will need to specify the basic rules of telework in employment regulations or telework instructions. We would be delighted to advise you on how to prepare these.
• The provision entitling an employer to monitor telework and to request that employees provide information about work results is, in our opinion, redundant. Employers already enjoy such rights under the current legislation in force as a part of their general competences to supervise the work relationship.
2. Confirmation of employer’s rights
Employers will be expressly entitled to:
• Require employees to provide information on whether they have been recently stayed at a location exposed to the risk of COVID-19 contamination,
• Require an employee who is legitimately suspected of being infected with COVID-19, or an employee who has recently visited a location exposed to the risk of COVID-19 contamination, to undergo necessary medical tests,
• Monitor an employee’s health before permitting them to enter the workplace, particularly by measuring their temperature,
• Adopt additional sanitary or OHS requirements at the workplace.
SSW’s comments / recommendations:
• The proposed amendments merely confirm the rights that employers enjoy under the current legislation in force.
• As regards measuring a person’s temperature, it should be remembered that the current epidemiological guidelines published by GIS [Chief Sanitary Inspectorate] (https://gis.gov.pl/aktualnosci/zasady-postepowania-z-osobami-podejrzanymi-o-zakazenie-nowym-koronawirusem-2019-ncov/) state that merely having a fever (clinical criterion) is not by itself a reason for someone to undergo epidemiological or medical procedures.
3. Temporary suspension of business activities
An employer will be entitled to apply to the regional labour inspectorate for a temporary suspension of the employer’s business activities if:
• The number of employees requested to work remotely exceeds 20% of the total staff number or
• Requesting employees to work remotely (regardless of their number) would prevent the business from functioning or seriously hinders such functioning.
If the inspectorate agrees, the employer will pay employees a downtime remuneration, half of which will be funded by the State Treasury. A refusal can be challenged at the Chief Labour Inspectorate.
If an employer’s request to temporarily suspend their business activities is refused following such an appeal, the employer will still be entitled to the suspension but would be liable to cover all of the costs of downtime remunerations.
SSW’s comments / recommendations:
• The amendment does not specify the criteria to be used when considering a request to temporarily suspend business activities, so such decisions will be largely discretionary. We anticipate that a well-prepared and justified application will be decisive.
• The amendment bill was approved by the Senate even before the government announced the epidemic risk, which by itself results in the suspension of many employers’ activities. It is uncertain whether, and to what extent, the proposed new laws would apply to that category of employers.
4. Extending the right to extra care allowance
The bill extends the right to extra care allowance by:
- Applying it to the entire period of school inactivity (currently 14 days) and
- Enabling insured persons who take care of children younger than 15-years-old to benefit from the allowance (the current age limit is 8 years).
SSW’s comment / recommendations:
- The proposed solution is evidently beneficial for the insured, but it will impose extra burdens on employers or the Social Insurance Fund.
5. Quarantine and hospitalization paid for by the Employees’ Benefits Fund
Anyone undergoing an obligatory quarantine or hospitalization for COVID-19-related purposes would receive financial benefits directly from the Guaranteed Employee Benefits Fund. Employers would be exempted from the duty to provide sick pay.
SSW’s comments / recommendations:
- The proposed solution takes account of the request made by employers organizations.
6. Abolition of the prolongation fee
An employers who, as a result of COVID-19, faces a difficult financial situation and exercises the possibility to extend the payment date of social insurance contributions or to pay in instalments, would not be required to pay a prolongation fee (50% of interest for any delay).
SSW’S comments / recommendations:
- The government has announced that the proposed solution will form part of the so-called protective package.
- Please remember that, according to the current legislation, an application to extend the payment date of social insurance contributions or to pay in instalments must be submitted before the datew on which the social insurance contributions became overdue.
7. Enabling economic shutdown without waiting for decreased turnover
Employers are to benefit from solutions defined in the so-called anti-crisis Act of 2013 (act on special solutions related to the protection of jobs) without needing to wait until they fulfil the relevant economic criterion (i.e. decreased turnover at least 15% within 6 subsequent months over the previous 12 months).
SSW’s comments / recommendations:
- Pursuant to the anti-crisis Act of 2013, an employer – upon agreement with their staff – can introduce a so-called economic shutdown, temporarily limit working hours or apply to have salaries funded from the Guaranteed Employee Benefits Fund.
8. Extending the exclusion of employer liability
The COVID-19 (Extraordinary Measures) Act creates certain exclusions from liability only as regards entities that manage airports or railway stations, airlines, rail- or road-transport operators. Such entities are not liable for any harm caused in connection with the legitimate actions of public authorities seeking to prevent COVID-19, particularly as regards transport restrictions.
The amendment envisages that the exemption will be extended to all employers which, as a result of actions taken by public authorities, may have difficulties performing their contracts.
SSW’s comments / recommendations:
- The proposal seems legitimate, but such a wide-reaching exclusion of liability should be preceded by an analyses of the consequences on the economy as a whole.
9. Compensation
Employers who suffered harm as a result of actions taken by authorities to counteract COVID-19 will be entitled to apply to be indemnified from a part of the state budget that is held by regional authorities.
Indemnities will be granted pursuant to decisions issued by regional authorities, following the employer’s application.
SSW’s comments / recommendations:
- The proposed solution is beneficial for employers, but it will create an important additional burden for the state budget which is difficult to estimate at the moment.
We remain at your disposal.
SSW’s experts constantly monitor all draft legislation and recommendations issued by public authorities.
If you have any questions or doubts, please do not hesitate to contact us!
