Employers and new regulations on COVID-19
On 8 March 2020, the Law on special arrangements for the prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them (Crisis Act) took effect. It introduced a number of provisions setting rules and procedures for preventing and combating infection and spread of the COVID-19 infectious disease caused by the SARS-CoV-2 coronavirus as well as tasks of public administrations in this regard.
Main assumptions of the Crisis Act
A new coronavirus called SARS-CoV-2 is a virus that can cause respiratory failure syndrome. The disease it causes is described as COVID-19. SARS-CoV-2 was identified in late 2019 and is a new strain of coronavirus which was not previously identified in humans.
Therefore, lawmakers have identified the need to take action to minimise the risk of the SARS CoV-2 virus to public health. They supplement basic regulations (particularly) specified in the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans.
Detailed solutions introduced by the Crisis Act include:
- the ability of an employer to instruct an employee to work remotely,
- an additional guardianship allowance for a period not exceeding 14 days for an insured person dismissed from work due to the need to personally care for a child in case of closure due to COVID-19 of a crèche, children’s club, kindergarten or school attended by a child,
- the ability of an airport operator to set specific security control rules or to waive control in relation to medical staff,
- determination by the minister responsible for health, by means of a notice, of maximum prices for medicinal products, medical devices and foodstuffs for particular nutritional uses that may be used in connection with counteracting COVID-19,
- provision of health care services, including sanitary transport, provided in connection with COVID-19 counteraction by entities performing therapeutic activities on a relevant list and their financing by the National Health Fund from the state budget,
- ability of the Prime Minister to impose an obligation on a local government to perform a specific task in connection with counteracting COVID-19,
- ability of a provincial governor to give instructions to government administration bodies in a province as well as to state legal persons, local government bodies, self-government legal persons and self-government organisational units without legal personality,
- right of the Prime Minister to issue, at the request of a provincial governor, a specific order in connection with counteracting COVID-19 in relation to legal persons, organisational units without legal personality and entrepreneurs,
- power of the Chief Sanitary Inspector or the State Regional Sanitary Inspector acting under his authority to issue:
- decisions imposing, inter alia, the obligation to take certain preventive or control measures and to request necessary information,
- recommendations and guidelines on how to proceed in carrying out necessary tasks.
Home from work
The Crisis Act contains provisions that significantly affect the rights and obligations of employers and employees. One of them is a provision that allows the employee to be instructed to work from home.
According to Article 3 of the Crisis Act, in order to counteract COVID-19, an employer may instruct an employee to render, for a fixed period of time, work specified in an employment contract, outside the place of its permanent performance (remote work).
It follows from this provision that an employer may unilaterally instruct an employee to work remotely outside the place of permanent work (e.g. from home). The basis for issuing an employee such order is “counteracting COVID-19”, which means all activities related to fighting the infection, preventing the spread, prophylaxis and countering of the effects of the disease caused by the SARS-CoV-2 virus. When giving an order to work remotely, the employer should specify the time for which the employee must do so. For evidence purposes, it is recommended that the order to work remotely be in written or electronic form.
Additional care allowance
According to art. 4 of the Crisis Act, in case of closure due to COVID-19 of a crèche, children’s club, kindergarten or school attended by the child, an insured exempt from work due to the need to personally care for a child up to 8 years of age is entitled to an additional care allowance for a maximum period of 14 days.
An additional care allowance is granted in accordance with procedures and principles set forth in the Act of 25 June 1999 on cash benefits from social insurance in case of sickness and maternity. The period of receiving an additional benefit is not included in the period of receiving an ordinary carer benefit, which is 60 days. Moreover, an employee does not retain the right to receive an ordinary care allowance for the period of receiving an additional care allowance.
It is worth noting that new regulations on ordering an employee to work remotely and payment of an additional care allowance have not been introduced permanently. They will expire 180 days after the Crisis Act enters into force.
Mateusz Brząkowski, attorney-at-law, Employment practice, Wardyński & Partners
Article first published on hrlaw.pl