Poland: Employees refuse to come back to the office after working from home. What can employers do?
The anti-COVID-law in Poland allows employers to send employees home, temporarily working from home during the epidemic, even if employees have no teleworking agreement in place. Many firms used this opportunity to ensure burden-free operation during the epidemic. But after most of the COVID restrictions were already lifted, many employees still decline invitations to come back to the office.
The anti-COVID-law stipulates no maximum deadline as to how long the home office order may stay in force. This means that the employer is entitled to decide unilaterally on this issue in the scope of its general authority to issue orders and directives to employees. Should an employee refuse to obey, the employer is even entitled to terminate the employment on the ground of violation of a direct employer’s order. However, this kind of misconduct should not be treated as a very serious offence, as far as the employee carries out their working duties properly. Indeed, termination on that basis could be difficult to defend in the labour court.
The employer’s right to demand a return to the office after working from home should be considered in the context of a simultaneous duty to provide safe working conditions in the workplace. Recently, the Polish Government issued special safety conditions for offices ‒ these should be treated as mandatory safety and occupational rules during the epidemic. These rules stipulate detailed minimum distances, disinfection measures and mandatory wearing of masks in certain situations.
According to Article 210 of the Polish Labor Code, an employee who discovers that those rules are not being obeyed in the office may refuse to commence work, on the ground of breach of labour protection provisions. Moreover, refusal may not lead to adverse treatment of that employee. This means that an employee may even terminate their employment contract with immediate effect.
So both contracting parties should seek to organize a return to the office from working at home in an amicable and stepwise way, e.g. by partial presence at the office or by introduction of working shifts.
And what to do if you suppose that employees at home office waste their working time for private purposes, while using company laptops or mobile phones?
The employer is allowed to check company e-mails only if it introduces e-mail monitoring at least two weeks in advance. In smaller companies of up to 50 employees it is enough to introduce monitoring in an announcement addressed to all employees, while in larger companies the so-called working regulations must be amended accordingly. However, even after properly introducing an e-mail monitoring scheme, an employer is still barred from breaching the privacy of employee correspondence.
Act amending special regulations connected with combating and counteracting COVID 19 – dated 31 March 2020 (J.L. of 2020, item 568 as amended); Labour Code – Act of 26 June 1974 (J.L. of 2019, item 1040 as amended)