When can an employer refuse remote work to an employee?

Remote work has been regulated in the Polish Labor Code relatively recently. In response to the signals coming from the parties to the employment relationship, the legislator considered the existing regulations on remote work to be insufficient. Therefore, he introduced more specific and comprehensive norms in this area What types of remote work can we distinguish? Can everyone work remotely? When can an employer refuse remote work? We present answers to these questions below.

Table of Contents

• What types of remote work can we distinguish?
• Can everyone work remotely?
• Summary

What types of remote work can we distinguish?

The regulations indicate three types of remote work:

1. the so-called proper remote work,
2. remote work performed at the unilateral instruction of the employer,
3. occasional remote work.

The Labor Code does not directly define the concept of remote work but allows for its interpretation.

So, a proper remote work can be defined as work carried out:

• completely or partially at the location indicated by the employee and agreed upon with the employer on each occasion. This includes the employee’s residence address.
• with the use of means of direct communication at a distance.

However, the provisions indicate that remote work does not include work:

1. that is particularly hazardous,
2. as a result of which the permissible standards of physical factors set for living quarters are exceeded,
3. involving chemical factors that pose a hazard,
4. that is related to the use or emission of harmful biological factors, radioactive substances, and other substances or mixtures emitting noxious odours.
5. causing intensive pollution.

The agreement between the parties to employment contract regarding remote work can occur:

• at the moment of concluding an employment contract, or
• during employment period (at the initiative of the employer or at the employee’s request submitted in paper or electronic form).

Remote work can also be performed exclusively at the instruction of the employer. A prerequisite is the employee’s declaration that he has the premises and technical conditions to perform remote work. Remote work can then be performed:

1. during the state of emergency, state of epidemic threat, or epidemic, and for 3 months after their repeal, or
2. during a period when the employer cannot temporarily provide safe and hygienic working conditions at the employee’s current place of work due to force majeure.

The employer can revoke the order to perform remote work at any time with at least two days’ notice.

If the employee informs the employer about a change in the premises and technical conditions that prevent him from performing remote work, the employer must immediately withdraw the order to perform it.

The Labor Code also provides for occasional remote work. Its length cannot exceed 24 days in a calendar year. Occasional remote work is performed at the employee’s request submitted in paper or electronic form. Justification for the request is not required.

Importantly, the employer is not obliged to approve the submitted request. When reviewing employees’ requests, the employer should adhere to the principle of equal treatment of employees and respect the prohibition of discrimination against them.

Can everyone work remotely?

The Labor Code defines employees for whom the employer is obliged to consider a request for remote work. These are:

1. a pregnant employee
2. an employee raising a child until it reaches 4 years of age,
3. an employee who takes care of another member of the immediate family or another person that remains in a common household with a certificate of disability or severe disability,
4. an employee mentioned in Article 6719 § 6 of the Labor Code, i.e., for example, an employee who is the parent of a child with a disability certificate or a certificate of a moderate or significant degree of disability as specified in separate regulations.

However, the employer may refuse remote work to the aforementioned employees if:

• Remote work is not possible due to work organization,
• Remote work is not possible due to the nature of the work performed by the employee

The employer must inform about the reason for refusing the remote work request within 7 days.

Summary

As can be seen from the above, the regulations state two cases when an employer may refuse remote work.

The first pertains to occasional remote work. It is carried out at the employee’s request. However, this request is not binding for the employer. Hence, he can refuse to consider it.

The second situation concerns employees listed in Article 6719 § 6 of the Labor Code. These include, among others, a pregnant employee or an employee raising a child until it reaches 4 years. In relation to them, the employer may refuse remote work if its implementation is not possible due to work organization or its nature. In this case, the employer must provide justification for refusal within 7 days.

If you are interested in the above article and want to know more about the subject, we invite you to cooperate with us. Our experts from law firm in Łódź and in Warsaw are at your disposal. Contact us today and let us help you!