On December 1, 2022, the Sejm passed draft amendments to the Labor Code. The amendment introduces the possibility for employers to monitor employees' sobriety and defines the concept of remote work. 430 MPs voted in favor of the amendment, 12 against, and no one abstained. The changes will take effect two months after their announcement.
Previously, the Sejm rejected the Confederation's motion to reject the bill in its entirety. The Sejm also rejected the Civic Coalition's amendments, which would have extended the vacatio legis to three months and limited "occasional remote work" to 30 days per calendar year.
1. Employee sobriety checks
The new regulations regulate two situations:
- testing the employee’s sobriety in the event of a reasonable suspicion that the employee is under the influence of alcohol or has consumed alcohol during work;
- preventive testing for the presence of alcohol in the employee's body.
The methods and means of carrying out inspections in accordance with the project should be specified, for example, in the work regulations.
However, there are many doubts regarding the above provisions.
It is clear that an employer will not allow an employee to work if a sobriety test reveals the presence of alcohol, indicating a state of being under the influence of alcohol or intoxication. Based on these regulations, one might therefore get the impression that if, for example, an employee's blood alcohol content (i.e., below 0.2 per mille) is low, they should be treated as if they were sober and expected to perform their duties.
Does this mean that a bus driver in such a condition can drive a vehicle?
The answer lies in the prepared implementing regulation for these regulations. It stipulates that if a breath test result exceeds 0, a second breathalyzer test must be performed. The person tested will also be able to request a repeat test with a theoretically more accurate breathalyzer. If the repeat test reveals a decreasing alcohol level, the employer will have no basis for refusing employment. If the level remains the same as before, experts believe a third test can be performed.
In practice, however, employers may take other measures, particularly in specific circumstances, such as when a bus driver is found to have a low alcohol level. If the employee has been informed that the nature of their duties requires special attention to their mental and physical well-being and sobriety, the employer may cite a loss of trust in the employee and terminate their contract.
2. Remote work
Remote work is understood as work performed wholly or partially in a place indicated by the employee and agreed in each case with the employer.
Employees will need to consent to remote work when entering into an employment contract or during employment. However, at the employer's request, assigning an employee to remote work will only be possible in two cases, provided the employee submits a declaration that the premises and technical conditions are suitable for such work:
- during the period of a state of emergency, a state of epidemic threat or an epidemic state and within 3 months after their cancellation, or
- when it is necessary due to the employer's obligation to provide the employee with safe and hygienic working conditions, unless, for reasons beyond the employer's control, ensuring these conditions at the employee's current workplace is temporarily impossible.
The draft law also includes a number of obligations for employers and employees that must be met before the employee begins remote work, such as providing the employee with the necessary materials and work tools, providing technical assistance and training in the use of work tools, and providing the necessary information required for mutual communication remotely or in another manner agreed upon with the employer. The employer will also cover the costs of electricity and telecommunications services necessary for remote work.
The adopted amendment stipulates that remote work may also be performed occasionally, at the employee's request, submitted in paper or electronic form, for a maximum of 24 days per calendar year. This form of remote work will be used in incidental circumstances, justified solely by the employee's needs. An example would be the need to care for a family member in need of immediate support.
According to the amendment, employers will generally not be able to refuse remote work to parents raising a child up to 4 years of age, parents and guardians caring for a disabled person in the family, and pregnant women, among others. Unless this is not possible due to work organization or the type of work performed by the employee, for example, in uniformed services.
The amendment will now go to the Senate for consideration.
This alert is for informational purposes only and does not constitute legal advice.
