COVID-19: Guidance for employers in Poland

By Paula Koczara, Izabela Kowalczuk-Pakula

10-2020

Below we answer some key questions to clarify Polish employers’ legal obligations and support you in protecting your business and people during the COVID-19 pandemic.

What is the current level of restrictions in Poland?

The epidemic is still ongoing, thus the level of restrictions is moderate. A four-step plan (named 'defrosting the economy') has been implemented. Currently, Poland is in its fourth wave: social restrictions are being eased gradually. Schools are open under a new sanitary regime, and since 1 September shopping malls, restaurants and hairdressers have been operating under a new sanitary regime as well. Museums and art galleries are open. Gatherings of up to 150 people make take place. More than 150 people may participate in artistic and entertainment events organised in an open space, provided that social distance is maintained (which has been shortened from 2 m to 1.5 m). 

There are guidelines for employers reopening workplaces, however remote work is still recommended. The ability for employers to unilaterally order remote work has been extended for the whole period of the epidemic and for a further three months afterwards. The length of obligatory quarantine has been shortened from 14 days to 10 days, with no obligation to undergo further COVID-19 tests.

On 8 August 2020, the Polish Government proposed a new way of imposing social restrictions in response to COVID-19. Currently, social restrictions are introduced in powiats (local administration units) depending on the number of active COVID-19 infections. At present, each powiat is indicated as a green, yellow or red zone. A green zone means no additional restrictions are imposed, a yellow zone imposes moderate additional restrictions, and in a red zone additional restrictions are imposed (updated list is available here).

In the yellow or red zones, the following limitations are introduced, mainly limiting the number of people present at the same time: 

  • restaurants, cafes, bars, fairs (with the obligation to wear masks): red zone: 1 person per 4 m2; yellow zone: 1 person per 4 m2;
  • cinemas, theatres, operas, concert halls: red zone: max. 25% of seats; yellow zone: max. 25% of seats;
  • gyms, swimming pools, solariums, massage salons: red zone: 1 person per 10 m2; yellow zone: 1 person per 7 m2;
  • sports events: red zone: no audience, yellow zone: max. 25% of seats (with the obligation to wear masks), green zone: max. 50% of seats (with the obligation to wear masks);
  • amusement parks: red zone: closed; yellow zone: 1 person per 5 m2;
  • organising  expos, conferences, exhibitions: red zone: forbidden; yellow zone: 1 person per 4 m2 (with the obligation to wear masks);
  • weddings: red zone max. 50 people; yellow zone: max. 100 people;
  • religious ceremonies: red zones: up to 50% of occupancy of the building, max. 150 people gathered outside and obligation to cover nose and mouth;
  • clubs and discos remain closed in all zones;
  • in red zones: obligations to cover mouth and nose publicly (masks or visors).

Air traffic is suspended from/to many countries with a significant increase of new COVID-19 cases. The list is updated every two weeks. The suspension does not apply to international flights chartered before entry into force of the regulation, to enable post-vacation returns to Poland. 

What are employers’ obligations in respect of COVID-19?

Occupational health and safety measures apply to employers, i.e.:

Mandatory:

  • Additional security measures: order remote work whenever it is possible, individual work stations must be at least 1.5 m apart and employees must have protective measures (e.g., protective gloves, disinfectant fluids). It is no longer mandatory to wear protective masks or other forms of mouth and nose coverings provided social distancing is maintained, unless the type of work performed does not require direct contact with third parties (e.g., clients, contractors etc.). There is a general obligation to limit exposure to the virus in the workplace and to take appropriate measures in this regards.

Recommended:

  • General obligation/duty of care to take appropriate measures to protect employee health and wellbeing may require specific actions to be taken with regard to COVID-19.
  • Remote work recommended. If this is not possible, appropriate sanitary measures have to be implemented to assure employees' protection (emphasis on health & safety internal regulations).
  • Limits on employees being present at the same time (including in shared spaces, e.g. cafeterias) and employees to maintain a distance of at least 1.5 m from others.
  • Protection of the most vulnerable group of employees (e.g. pregnant, chronically ill etc.).

If a company confirms that an employee has been exposed to or infected by COVID-19:

There are no notification obligations required by law but the following notifications may be recommended

  • Health authority: Local sanitary inspectorate (highly recommended if the infection among employees is confirmed). However, the local sanitary inspectorate may require certain notifications to be made.
  • Company doctor (recommended, if applicable)
  • Same site workforce (recommended)
  • Customers (recommended) 

However, there are notification restrictions as the privacy of the impacted individual must be balanced against the need to protect other employees.

Issuing internal instructions / guidelines or policies is strongly recommended to regulate the steps to be taken in the workplace in case of COVID-19 infection. Isolation rooms are to be considered in order to protect staff from virus spread, once there is a high degree of probability that one of the employees is actually infected. In any case, the Sanitary Inspectorate must be contacted in order to issue ad-hoc guidelines for employers.

What financial assistance is the Government providing to employers?

  • Financial aid in case of decreased amount of working time (40-40-20) by max. 20%b however no more than 50%. The State will finance up to 50% of the salary lowered due to decreased amount of working time but not more than 40% of the average monthly salary in Poland from the previous quarter, i.e. (approx. EUR 484) and employees' social security contributions ('SSC') due from the employer from granted co-financing. There is a special application procedure and formalities. 
  • Financial aid in case of economic downtime: Lower salary by no more than 50% (cannot be lower than the minimum salary PLN 2,600 (approx. EUR 591)), considering the working time, in case of 50% salary reduction it cannot be lower than  PLN 1,300 (approx. EUR 295). The State will finance: reduced salary in the amount of 50% of the minimum salary (approx. EUR 295), considering the amount of working time and employees' SSC due from the employer from granted co-financing. There is a special application procedure and formalities. 
  • Subsidy without decreasing working time: the State will finance any changes in employees’ current amounts of working time up to 50% of the employee's remuneration, but not more than 40% of the average monthly remuneration in Poland from the previous quarter (approx. EUR 484). The applicable conditions are: (i) only employees/workers not covered previously by the maximum period of co-financing due to decrease of working time/economic downtime; (ii) only employees/workers not covered by previous co-financing under Anti-Crisis Shield 1.0/2.0/3.0 at the same time; and (iii) only employees not covered at the same time by downtime on the basis of the Labour Code.
  • No co-financing: remuneration above PLN 15,994 (approx. EUR 3,637) (if the remuneration in the month preceding the application was higher than 300% of the average monthly remuneration in Poland from the previous quarter). 

  • Co-financing period: max. three months following the application date. Deadline for application: 27 September 2020.

  • Loan up to PLN 5,000 with 0.05% interest for 12 months to cover operational costs in small companies. 

  • Aid from local authorities  - County (Starosta) – can be enjoyed by SMEs only:
    • Fall in turnover by at least 30% - co-financing in the amount not exceeding PLN 1,300 (approx. EUR 295)
    • Fall in turnover by at least 50% - co-financing in the amount not exceeding PLN 1,820 (approx. EUR 413)
    • Fall in turnover by at least 80% - co-financing in the amount not exceeding PLN 2,340 (approx. EUR 532).
  • During the COVID-19 pandemic, employers may suspend obligations related to the Social Benefits Fund (its creation and functioning, making basic write-offs and to pay holiday benefits). 

  • The employer may unilaterally order an employee to use any outstanding annual holiday leave up to 30 days.

  • An NCA might be terminated within seven days' notice period.

  • Severance payments, after meeting statutory requirements, may be capped at PLN 26,000 (approx. EUR 5,915).
Can employers request or require information from an employee, customer or workplace visitor about potential or actual exposure to the virus?

Yes, but with limitations. 

Employers are required to have the appropriate legal basis to process such data. Certain data related to potential or actual exposure to the virus may be treated as regular data (e.g. travel history), whereas other data (e.g. symptoms) are considered special categories of data. 

The legal basis for processing regular data may be legitimate interest based on the general obligation of an employer to assure health and safety. As for processing special categories of data, establishing a legal basis is more problematic. 

According to the Polish DPA (President of the Office of Personal Data Protection), the employer may collect and store information on symptoms of COVID-19 if the sanitary authority has ordered (in an individual decision) or provided general guidance or recommendations that the employer should take such a measure (in English here: https://uodo.gov.pl/en/553/1134).Such decisions are difficult to obtain. The sanitary authorities have issued over 60 different guidelines for various sectors / entities. The guidelines are inconsistent. Most of them do not cover the topic. However, for example, physiotherapists are explicitly allowed to ask visitors about symptoms - a draft questionnaire is suggested (https://www.gov.pl/web/rozwoj/rehabilitacja). Hairdressers and beauty salons should call their customers one day in advance and warn them that they should not come to the visit if they: (i) have symptoms; (ii) are under obligatory isolation or quarantine; (iii) live with a person who is subject to obligatory isolation or quarantine; or (iv) had  contact with a person suspected of being infected, falling ill or sent for isolation during the week (https://www.gov.pl/web/rozwoj/salony-kosmetyczne and https://www.gov.pl/web/rozwoj/salony-fryzjerskie).

Therefore, it might be difficult for employers to find the appropriate legal basis to collect and store information on symptoms of COVID-19 of its employees, customers and workplace visitors. Depending on the type of sector / entity, we recommend verifying this issue on a case-by-case basis. The list of the guidelines is available only in Polish here: https://www.gov.pl/web/gis/wytyczne-zamieszczone-na-stronach-poszczegolnych-ministerstw-we-wspolpracy-z-gis.

In addition, a number of guidelines provide that employees and visitors who have symptoms should not come to work and various other locations (e.g. shopping centres - https://www.gov.pl/web/rozwoj/centra-handlowe). Therefore, the company may prohibit employees and visitors with symptoms from entering the premises instead of collecting information on COVID-19 symptoms through a dedicated questionnaire.  Employers may also collect information about symptoms if the employee or visitor volunteers them.

For workplaces that are open, what should employers do if an employee is absent or infected?
  • Employees with confirmed COVID-19 cases:
    • sick leave and sick pay under the regular sickness leave scheme
  • Employees in quarantine or self-isolating (i.e. not confirmed COVID-19 cases):
    • regular pay during homeworking (as agreed between parties or imposed by the employer) if work may be performed remotely
    • sick pay under the regular sickness leave scheme if remote working is not possible
  • Employers should take all protective occupational health and safety measures relating to any confirmed infection, especially with regard to disinfection.
What are employers' obligations where offices are partially or fully closed?

If the work cannot be performed due to partial / full office closure, employers may order remote working for the whole period of the epidemic and three months afterwards. If the type and character of work may be done remotely, no further obligations are imposed when business continuity is maintained.

Employers may request one of the State Aid assistance measures, as described above. If the office is not open and there is no possibility to work remotely, the employer is obliged to pay remuneration to the employee in the amount of the basic salary specified in the employment contract. If this is not indicated, the employee is entitled to 60% of their remuneration.

If employees work from home, the employer needs to meet all occupational health and safety requirements, except the following:

  • to ensure the safe and healthy condition of the work premises and technical equipment, as well as the effectiveness of the collective protection measures and their application in accordance with their intended use;
  • to respect particular occupational health and safety conditions regarding buildings and work premises; and
  • to provide appropriate hygiene and sanitation facilities and personal hygiene products for employees.
Can employers discipline employees during the pandemic?
  • In general, yes. Employers may discipline employees to comply with internal COVID-19 regulations (if applicable), and with general statutory obligations relating to occupational health and safety. The Polish Labour Code stipulates three forms of penalties (closed catalogue) which may be imposed on an employee due to their breach of duties under statutorily determined circumstances: warning, reprimand and financial penalty (employee’s maximum daily remuneration, in total the fines imposed may not exceed 1/10 of the employee’s monthly remuneration paid after statutory deductions).

  • Disciplinary termination: in case of an employee's gross misconduct, the employer may immediately terminate the employment relationship without notice in the following cases:
    • the employee’s serious breach of his/her basic duties;
    • criminal offence committed by the employee during the employment that prevents the possibility of further employment in the current position, if the offence is obvious or declared by court in a final and non-appealable judgment;
    • loss of a licence necessary to perform work in the current position through the fault of the employee.

      Such a measure is extraordinary and should always be used carefully.
  • As a rule, employees taking advantage of State Aid, as described above, enjoy special protection against termination for the whole period of co-financing. Thus, taking the disciplinary action of termination requires the employer to return the State Aid. The rules of returning the State Aid depend on the type and character of the particular State Aid measure. 
Where can employers and employees access local and national advice?

Last update: September 2020