Important changes in labour law: remote work, drug and alcohol testing

An amendment to the Labour Code regarding remote work and workplace drug and alcohol testing is planned for early 2023. The Sejm, the lower house of the Polish parliament, rejected amendments to the bill proposed by the Senate. The exact effective date of the amendment is not yet known. The amendment still needs the President’s signature and publication, but it seems that the new rules (at least in the part concerning drug and alcohol testing) will still enter into force in the first quarter of 2023.

What will change?

1) Ability to introduce drug and alcohol testing in the workplace

If it is necessary to protect life and health of employees or other people or to protect property, employers will be able to test employees for alcohol and substances acting similarly to alcohol (the list of those substances will be specified in separate regulation). The testing will have to respect the dignity and other personal rights of employees. The methods used cannot require laboratory testing and the testing device has to have a valid document confirming its calibration.

If an employee is found to be intoxicated as a result of a test, the employer will have the right not to allow such an employee to work and may discipline them.

As that amendment comes into force, the rules of processing and the scope of employees’ personal data processed by employers will also change. Employers will be able to process information about the date, hour and minute of tests and results indicating that the employee was intoxicated when it is necessary to ensure the protection of life and health of employees or other people or the protection of property. Employers will be able to keep that information in employees’ files for up to a year from the date of collection, or until the disciplinary action is expunged from the employee’s records, or until the final conclusion of the proceedings in which the information constitutes evidence.

2) Remote work

Remote work is currently regulated in the so-called ‘special Covid law’ in a very vague manner that raises many doubts in practice. Now, we will see more precise regulation in the Labour Code. Employees and employers will be able to agree on remote work both at the time of signing the employment contract and during its term. Employees working remotely will have to be treated no less favourably than other employees doing the same or similar work with respect to the establishment and termination of the employment relationship, terms of employment, promotions, and access to training to improve professional qualifications, and cannot be discriminated against because of working from home. The amendment introduces and specifies in this regard:

• Option for employers to instruct employees to work remotely;
• Option for employers to revoke the remote work instruction;
• Situations in which employers are obliged to grant the employees’ request to work remotely;
• Conditions for the cessation of remote work and restoration of the previous work conditions;
• Obligations of employers related to employees working from home (such as providing and maintaining work tools or covering expenses of working remotely);
• The rules for the inspections of remote work by employers;
• A list of jobs excluded from remote work.

What’s important, as a result of that amendment, employers will have to implement special data protection procedures. Also, the remote work regulations will apply to employment relationships based on arrangements other than an employment contract.

What do you need to do to adapt your business to the upcoming changes?

The introduction of drug and alcohol testing of relevant staff and the methods of testing, including the type of device used, the time and frequency of testing, need to be specified in a collective agreement or in the employee handbook or in a notice (e.g., announcement of the policy in this regard). Therefore, it will be necessary to modify those documents and adapt them to the upcoming changes.

The remote work rules, in turn, need to be defined in an agreement between the employer and the company trade union. If no agreement is reached within 30 days from presentation of the draft agreement by the employer, the employer will determine the remote work rules in a handbook, taking into account the understanding reached with the company trade union in the course of negotiating the agreement. If there is no trade union, employers will determine the rules for working from home in a handbook, following consultation with employee representatives selected in accordance with the procedure adopted by the employer.

Working remotely is also possible if no agreement has been concluded or no handbook has been issued. In such a case, employers specify the rules of working from home in the remote work instruction or in the agreement concluded with an employee, as applicable. Therefore, it will be necessary to prepare and implement relevant workplace documents.

Moreover, the amendment will necessitate a number of documents that may be prepared in advance to standardize flexible work processes, such as a request to work from home or ending remote work, a remote work occupational risk assessment, or model statements that have to be submitted by an employee to work remotely.

In addition, the amendment will result in the necessity to modify the information provided to new employees by adding the required information regarding drug and alcohol testing or working remotely. In both cases, it will also be necessary to revise the employee privacy policy.

Support by LBKP

We have been continuously monitoring the status of the Labour Code amendment act and have been preparing for those changes to come into force for a while. If necessary, we will be happy to assist you in the implementation of the new solutions in your company’s employee documentation.

If you are interested in our support, please contact Ewa Knapińska, Attorney-at-Law (ek@lbplegal.com) or Marta Żukowska, Attorney-at-Law (mz@lbplegal.com), who will be happy to answer any questions you may have about the upcoming legal changes and help you with their implementation.