Polish Employment Law Developments: Substance Testing and Remote Work

A notable development in Polish employment law recently was passed. The legislation includes substance testing requirements and regulations on remote work.

This new legislation will have a powerful impact on Polish companies. Employers located in Poland should examine their policies and procedures to ensure they comply with these new regulations. Polish employers will be required to add special clauses reflecting the substance testing and remote work stipulations to their internal Work Regulations.

Substance Testing Requirements

On January 1, 2023, the law on substance testing is expected to come into force.

The law on substance testing will allow employers to test employees for the use of alcohol and other substances. Currently, only the police have the right to test individuals for alcohol and other substances in Poland. Substance testing appears especially important for companies with production facilities and transportation services. The new legislation permits employers to conduct informal sobriety checks. The employer may introduce such sobriety checks if these checks are deemed necessary to ensure the safety of employees or other persons. The checks also may be implemented for the protection of property. The sobriety checks will not require laboratory methods or devices with valid calibration documentation and will be done to determine whether alcohol or drugs are present in the employee’s body. However, the method of checking an employee’s sobriety must not violate their dignity and/or other personal rights.

The employer will be required to prohibit the employee from working if a sobriety check reveals the presence of alcohol or drugs in an employee’s system or if the employer has reasonable suspicion that the employee is under the influence or consumed alcohol or drugs at work. If an employee is prohibited from working due to either reasonable suspicion or informal sobriety check failure, the employer or employee may request an authorized body to conduct a second formal sobriety test.

If the second sobriety test garners a clear result, then the period during which the employee is banned from working will be treated as a justified absence, and the employee will be entitled to remuneration.

Alternatively, if the second sobriety test indicates a positive result for alcohol or drugs, the employer will be required to file this information on the employee for one year. An employee that receives a disciplinary penalty for failing the sobriety test will have the penalty marked on their employment record until it is nullified.

Introducing Sobriety Checks

Polish employers should introduce two new components into their work regulation clauses. First, Polish employers should include language that stipulates the groups of employees covered by the sobriety check. Second, the new clauses should describe the manner of the sobriety checks – i.e., the type of device used for the check, the time and frequency of the check, etc. Additionally, the amended work regulations should appoint the party authorized to conduct sobriety checks and prepare data processing authorizations. Information clauses in work regulations will require updates that reflect these new testing stipulations.

Remote Work Stipulations

The pandemic made home offices the trend, and now the pendulum is swinging towards regulated remote work. Poland has enacted formal regulations for remote workers. The law on remote work is expected to come into force on March 1, 2023.

The new remote work legislation will require Polish employers to prepare a remote work policy that includes the following information:

  • those groups of employees that have the option to work remotely
  • expense reimbursement rules
  • communication rules between the employer and the remote worker
  • principles of monitoring work performance
  • information on health and safety stipulations or inspections
  • rules for both employer and employee data protection and confidentiality
  • rules on installing and maintaining work tools (such as software).

Notably, the legislation stipulates that Polish employers will now be responsible for the costs of remote work. This means that employers will reimburse employees in a lump sum for the cost of electricity, internet access, and any other costs directly related to the performance of remote work.

Polish employers must consult employees’ representatives or trade union organizations before implementing the new remote work regulations. Once consultation with the chosen representative or trade union occurs, specific agreements for individual employees or groups of employees will be executed that define the health, safety, confidentiality, communication, and reimbursement rules applicable to those workers that fall under “remote” status.

Those employees that work remotely only occasionally (a maximum of twelve days per year) will not be subject to the new requirements.

The remote work stipulations will place additional duties on employees as well. Employees will be responsible for the proper organization of their remote workstations. This means that the employee will be required to submit an electronic or written declaration that they have adequate working premises and technical conditions to perform their work duties. Data protection and privacy procedures will also be in place to ensure sensitive company information is not leaked while the employee works at home. To ensure employer property is protected and confidentiality is upheld in the remote work environment, software and other work tools will require new installation and maintenance procedures.

To some extent, these issues likely have been already addressed in existing remote work policies, but they will have to be reviewed considering the new legislation. Polish employers should prepare for these changes over the next three months to ensure compliance by March.

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