COVID-19: Guidance for employers in Poland

By Paula Koczara, Izabela Kowalczuk-Pakula

03-2020

The outbreak of Novel Coronavirus (COVID-19) has sparked fears of a worldwide pandemic. The World Health Organization has declared that this is a public health emergency of international concern and two official statements on COVID-19 have been issued by the Central Sanitary Office (regarding visitors coming back from Northern Italy) and the National Labour Inspectorate. Both statements are quite reserved and no extraordinary measures should be undertaken at this time. However, understandably COVID-19 may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.

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

At time of writing there are no specific mandatory obligations for employers in respect of COVID-19. However, the virus is already covered by the Infectious Disease Control Act, and the new bill about the special measures due to COVID-19 was adopted (click here). As the situation is quite dynamic, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees. As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection.

Additionally, to implement an operational framework of temporary measures that may be used by employers, we recommend creating and adopting a special procedure. Such a procedure will assist employers to justify any additional activities in the absence of a specific legal basis for such actions.

Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like coronavirus spreading. Such advice may include:

  • Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze

  • Put used tissues in the bin immediately

  • Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available

  • Try to avoid close contact with people who are unwell

We further recommend notifying employees where they can access more information if they are concerned.

Can employers request or require information from an employee about potential or actual exposure to the virus?

The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy, data protection and employment.

Any such data must also be processed in line with the applicable privacy and data protection requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country.

Employers in Poland must carry out investigations in line with GDPR requirements. In particular:

  • Employers can ask employees who have spent the last 15 days in a high-risk area to work remotely. However, employers cannot force employees to disclose specific COVID-19-affected areas they visited in the prior 15 days. We note that the National Labour Inspection prohibits employers from collecting this information, but we take the view that this is incorrect where an employee provides the information voluntarily. However, if the employee does not disclose such information, no disciplinary measures can be taken as there is no legal regulation requiring confirmation of exposure.

  • Employers must not collect in systematic or generalized manner information on possible COVID-19 symptoms suffered by their employees (or their family members) or measure the temperature of their employees;

  • Employers can inform their employees that there is a case of COVID-19 in the workplace, but they must ensure the infected employee's identity is not expressly or inadvertently disclosed ; and

  • Employers can investigate specific facts without the employee's consent; for instance, the employer can look into the employees business travels (e.g. destination, time, COVID-19 exposure), as it has a legitimate interest to do so.

Employers should also put specific procedures and policies in place. For example, employers can:

  • internally introduce ad hoc procedures to regulate special conditions of work performance (e.g. forbid and cancel international business travel);

  • forbid employees to attend meetings and/or cancel meetings and events;

  • order employees to work from home; or

  • request employees to wear protective masks and follow special hygiene procedures.

Employees can be required to temporarily work from home and employers can choose to close the office. Non observance by employees may result in disciplinary action, but not a termination without the required notice period.

Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site. There are currently no restrictions or obligations for the employer to inform a third party of any infected employees. However, if an employer chooses to do so, it must ensure it does not reveal the infected employees' identity expressly or inadvertently.

Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.

What should employers do if an employee is absent or infected?

If an employer is notified of an infected employee, there is currently no obligation for the employer to inform all employees, the workforce, employee representative bodies, national health and/or public authorities, the customers and any third parties of this knowledge. However, the employer may voluntarily inform these bodies about the confirmed case(s) of COVID-19 among the workforce.

There are currently no restrictions in the form of any notification, information or consultation obligations or otherwise on employers to inform those bodies, employees or authorities. Employers may voluntarily inform employees about the confirmed cases of COVID-19 among the workforce without indicating the identity of the infected employees. If employers were to be in contact with the concerned employees, this should also be extended to employees in the same city, region or country who may not work in the same location.

If a medical certificate is submitted by an employee, the employer will pay sick leave for up to 33 days within the calendar year. Once this period is exhausted, the sickness benefit will be paid by Social Security Institution accordingly.

What are employers' obligations where offices are partially or fully closed?

In the case of partial or temporary closure of a plant, or discontinuity of operations due to the COVID-19 (as a 'force majeure' event), employers should encourage working from home where possible and if duly introduced into the company.

If there is a risk of work discontinuity because of COVID-19, rules akin to those applicable in a case of work interruption due to the employer may apply. In that case, the employee is entitled to remuneration for the period of non-performance of work, in accordance with their job-grade based on the assigned hourly or monthly pay rate. If there is no express hourly or monthly pay rate in the employee's contract, they should be paid 60% of their basic remuneration (provided it remains above the statutory minimum wage). Parties may also agree to perform other work for the same employer during the period of temporary closure.

Where can employers and employees access local and national advice?

The institutions that provide current information for employers in relation to COVID-19 in Poland are:

Last reviewed 10 March 2020