Poland: Employers’ rights related to declaration of state of epidemic threat

On March 13, 2020, the Minister of Health announced the state of epidemic threat in Poland. One of the main consequences is the fact that many retail and cultural facilities are closed.

Below you find key comments on the employer’s rights related to the necessity to perform obligations arising from regulations issued by the Ministry of Health.

Leave

The employer is not allowed to impose a mandatory leave (paid annual leave or unpaid leave). Such leave can only take place upon a given employee’s consent.

Remuneration

Based on applicable laws, it is impossible to unequivocally determine whether employees are entitled to receive remuneration for the work they don’t perform as a result of the fact that workplaces are closed due to the state of epidemic threat.

As a general rule, remuneration is paid for the work performed. In can also be paid in the situations expressly defined in applicable legal regulations. Such regulations include the ones concerning remuneration for the time of inactivity and interruption. In order to receive such remuneration, specific criteria need to be fulfilled. One of them is that the employee needs to be available on standby (ready to perform work).

There are numerous arguments in favor of the view that the employer is not obliged to pay salaries/wages for the period over which work is not performed as a result of closing of workplaces due to the state of epidemic threat. However, when examining this issue, other aspects (which are important from the perspective of labor law) also need to be taken into consideration, especially the social dimension, the division of liability between the employer and the employee, and the employee’s privileged position in such relation.

Consequently, employers should realize that it might be necessary to pay remuneration upon the same conditions which apply to idle time pay.

Remote work

During the state of epidemic threat, the employer may ask the employee to work remotely (if possible). In such case, the employee is entitled to receive the same remuneration as if s/he was at the workplace.

Social insurance benefits

During the state of epidemic threat, employees are entitled to receive the following social insurance benefits:
1) in case of inability to work due to coronavirus infection – remuneration/sickness benefit;
2) in case of isolation or quarantine (recommended by a medical doctor) – remuneration/sickness benefit;
3) in case the employee submits a request for time off to take care of a child below 8 due to the fact that schools and other similar facilities are closed – additional care allowance of 14 days (added to other rights; however, it cannot be used by both parents at the same time).

Refusal to perform work

The state of epidemic threat means that only some workplace are closed. Others continue business as usual. It is worth noting here that restrictions related to assemblies of over 50 people do not apply to workplaces with over 50 employees. As long as they do not engage in operations listed expressly in the Regulation of the Minister of Health, they can continue operating in the same way as before.

However, an employee might refuse to perform work (in particular, this might happen at grocery stores, pharmacies and laundry shops). As a general rule, such refusal is possible if working conditions do not meet applicable OHS regulations and pose a direct threat to human life or health, or in case the work performed by a given employee exposes others to danger. This provision only applies under extraordinary circumstances, when the threat is real and unquestionable (rather than potential).

In view of the current situation, we can reasonably assume that if the employer provides protective measures (antibacterial gels, soap, etc.) and has notified employees about the rules of conduct (arising from guidelines of sanitary authorities) aimed at infection prevention, there is no reason to decide that an employee can effectively refuse to work.

However, such situations are discretionary in nature and might be affected by a range of factors (e.g. with respect to high-risk groups, cancer patients, etc.). Thus, every single case should be analyzed separately.

In its messages published so far, the National Labor Inspectorate (PIP) has noted that an employee can refuse to go on a business trip to regions with coronavirus infection.