Anti-Covid labour law regulations in Poland a year after the start of the coronavirus epidemic

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Anti-Covid labour law regulations in Poland
a year after the start of the coronavirus epidemic
Jakub Stelina

1. In Poland, the first reported case of coronavirus infection occurred on March 5, 2020, i.e. a few
weeks after the virus had reached Europe. The Polish government, richer in the experience of other
countries struggling with the problem, relatively quickly, just after a few days, i.e. when the
incidence was not large (about thirty identified infections), launched a number of measures to
prevent the spread of the epidemic. Schools were closed on March 12, catering, tourist and cultural
businesses and establishments - on March 14, universities - on March 16, and on March 20, 2020, a
state of epidemic emergency was declared in Poland. Although this is the least rigorous of the
states of emergency provided for by Polish law it, nevertheless, allows for imposing numerous
restrictions on citizens. Over the past year, depending on the epidemic situation, the government
would place or lift various bans and obligations on the population, including mobility limitation,
social distancing, covering the nose and mouth, quarantine, reduction of the size of public meetings
or closing borders to foreigners.

The effectiveness of the actions taken varied. In spring of 2020, the spread of the coronavirus was
suppressed. At the end of May, about 25,000 COVID-19 cases were diagnosed, of which more than
1,100 people died as a result. This brought about a certain easing of restrictions, yet the relaxing of
social discipline in summer contributed to an increase in the number of those infected. In the
autumn, on some days, more than 20,000 infections were revealed (with a daily record of over
27,000) and the number of deaths also increased - to several hundred a day. Since November 2020,
restrictions were reimposed, and calmed down the situation. In February 2021, the average daily
level of infections was approx. 6 thousand (with about 300-400 deaths a day), which gives a total of
more than 1.5 million reported cases (approx. 40,000 deaths) since the beginning of the epidemic.

2. Throughout the epidemic period, the main objective of the measures taken was to maintain the
healthcare system's capacity to provide medical assistance to all those who were in need of it. This
goal has been largely achieved, as in principle no situation – observed in some other countries - of
hospitals refusing to admit Covid patients occurred here. However, social costs of preventive
actions have been and still are huge. It is difficult to mention them all, and there is actually no need
to do so, as perhaps in every country affected by the pandemic, they are largely similar. Therefore,
most often, apart from strictly medical activities, protective measures are also taken, aimed at
mitigating the social and economic effects of the epidemic. In Poland, a number of such actions,
referred to as the "Anti-Crisis Shield", were taken relatively quickly. Their essential part is the
Act of March 2, 2020 on Special Measures Related to the Prevention, Counteracting and
Combating of COVID-19, Other Infectious Diseases and Crisis Situations Caused by Them
(hereinafter referred to as the "Anti-Covid Act"). It was promulgated in the Journal of Laws of the
Republic of Poland of 2020 as item 374 (www.rcl.gov.pl), and entered into force on March 8, 2020.

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Originally, the Act had about 20 pages, but as the epidemic situation evolved, it was amended and
extended many times (25 so far), and it has grown in volume to almost 260 pages!

The measures established by the Anti-Crisis Shield are temporary, as they should remain in force
until the reasons for which they were introduced cease to exist. The Anti-Covid Act sets out a
number of detailed conditions of the state functioning during the epidemic; it also provides for
mechanisms of public support to the undertakings which, due to the “economic freeze”, fell into
trouble. Temporary labour law regulations is an important part of the Anti-Crisis Shield package of
solutions, supposed to help maintain as many jobs as possible. They provide for both organizational
and financial measures in that respect.

3. Organisational measures. Their aim is to empower employers to develop the new work
organization more freely than before, and thus to flexibly react to the changing business
environment. The instruments in question include:

a) the authorisation to instruct the employees to do telework. The compulsory quarantine
ordered by the sanitary authorities, as well as the need for self-isolation, have reduced the mobility
of workers. For many employers, the only way to keep their business running was to entrust the
employees to do, for a specified period, the work stated in the contract of employment, outside the
place of its permanent performance (usually at home). The work of such a type was, of course,
allowed under Polish labour law earlier provided, however, that the employee consented to it in the
employment contract. Currently, the employer may instruct the employee to do distant work even
without the employee's consent. The employee can also be freely recalled from such distant work.

b) flexible working time. For an employer who suffers a decrease in trade turnover as a result of
COVID-19 and is not in arrears with payment of taxes and other levies, it is permissible to reduce
the uninterrupted daily rest from 13 to 8 hours, and the uninterrupted weekly rest from 35 to 32
hours and extend the daily working time, but not more than to 12 hours, with an average working
day of 8 hours in a reference period not exceeding 12 months being retained. The above mentioned
extension of the daily working time is introduced by way of an agreement concluded by the
employer with the trade union, or in its absence with the employee representative. The shortening of
the rest period must be compensated for by time off for a period not exceeding 8 weeks;

As regards the employers whose employees work in enterprises of special importance (e.g. in the
energy sector, entities important for defense/economic or other important interests of the
state/public safety, banks, enterprises of the food sector producing or supplying foodstuffs)
introduction of even more flexible work organization solutions is possible, including those
regarding working time system, overtime work, doing on-call work, or exercising the right to rest at
the place designated by the employer (in such cases, the employer is obliged to provide the
employee with accommodation and food necessary for the employee to meet his/her work duties);

c) taking the unused holiday leaves. The employers have also been given the right to grant the
employee the unused holiday leave on the date indicated by themselves, i.e. without the
employee’s consent and disregarding the holiday leave schedule;

d) extension of the period of paid care leave. An important employee entitlement is the right to be
released from work in order to care for a sick child or in connection with the closure of a
kindergarten or school. For the period of such a leave, the employee is entitled to a care allowance
paid by the social insurance institution, up to 60 days a year, as a rule. During the epidemic and the
closure of all institutions providing care for small children, it became urgent to extend the period of
receiving the allowance, and thus the release from work for the period of childcare for which the

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employee retains the right to the said financial benefit. Many parents caring for young children were
forced to stay at home for a long time, which resulted in their inability to work, especially when it
was impossible to work remotely. Thus, the Anti-Covid Act extended the benefit period until the
reopening of care facilities (kindergartens, schools, etc.);

e) changes in the rules regarding employment of foreigners. Due to the good labour market
situation before the coronavirus epidemic, employers used, to a large extent, the work done by
foreign employees, mainly from outside the European Union. The employment of such persons
requires a work permit. Sanitary restrictions forced part of the foreigners return to their countries of
origin, and the closing of borders to people not being Polish citizens made it impossible for these
people to come back to Poland. Moreover, difficulties in the functioning of state institutions could
have made some of those who remained in Poland to experience difficulties when applying for the
extension of administrative permits for residence and work. That is why the Anti-Covid Act
provided for a number of facilitations regarding the legalisation of their stay. Firstly, it was decided
that a change in the conditions of work performed by a foreigner during the epidemic would not
affect the validity of the granted work permit. Secondly, the validity of work permits which expired
during the epidemic was extended ex lege.

4. Financial instruments. The Anti-Covid Act provides for a number of solutions allowing to
subsidise the employers’ activities from public (state) resources or to directly reduce the costs borne
by employers.

a) subsidising the salaries of employees on economic downtime. Economic downtime can be full
or partial. Full economic downtime means a complete release of the employee from the obligation
to perform work, his/her right to part of the remuneration being retained. Thus, the employer does
not formally terminate the employment contract, but - due to the experienced economic hardships -
does not use the employee's work. The solution enables the employer to survive the most difficult
time, its greatest advantage being that a return to full operational efficiency can be easily achieved
after the problems are resolved. Instead of re-hiring employees, the employer calls on those who
were on standby to come back to work. A milder measure, of a similar nature, is partial economic
downtime, which consists in reducing the working time of an employee due to the restriction of
activity by the employer; the employee is thus only partially released from the obligation to do
work. In both cases (i.e. in connection with sending the employees home under an economic
downtime scheme or reducing their working time) the employer may apply to the state to subsidise
part of the employees’ remuneration. The condition for being granted the subsidy include: the
employer not being in arrears with payment of tax liabilities and social security premiums and a fall
in business transactions of not less than 15% compared to the same month in the preceding year or
by 25% compared to the selected month after January 1, 2020 (the Anti-Covid Act provides for an
option to reimburse the remuneration also of those working under civil law contracts).

To an employee subject to economic downtime the employer pays remuneration reduced by no
more than 50%, but not lower than the minimum wage (the state subsidy thus amounts to 50% of
the minimum wage). Salaries of the employees whose earnings exceed 300% of the national
average monthly salary are not subsidised. In the event of a reduction in the working time the
subsidies are applicable only in the situations where the employer reduces the working time by no
more than 20% and no more than down to half the employee’s working time at his/her position.

The conditions and mode of doing work during the period of economic downtime or reduced
working time are determined in an agreement concluded by the employer and trade unions (and in
the absence of trade unions with a selected representative of the staff).

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Benefits from the state related to economic downtime or reduction in working time are granted for a
total period of 3 months. The government may, in order to counteract the economic effects of
COVID-19, extend the period where it is justified by the country’s epidemic conditions. It should
also be noted that during the period in which the subsidies are received, the employer is not allowed
to give a notice to terminate the employee's contract of employment for reasons not related to the
employee.

b) Subsidizing the remuneration of employees in a special situation. This concerns, in particular,
people with disabilities employed in work establishments where occupational and social
rehabilitation of these people is carried out.

c) Authorisation to apply less favourable terms of employment. The employer may, with the
consent of the trade union (and in the absence of the trade union - with the consent of the elected
employee representative), apply to his staff terms of employment less favourable than those
resulting from employment contracts. The employer may, inter alia, reduce employee wages, even
if the volume of business transactions has not decreased (it is sufficient to demonstrate a decrease in
sales). This solution will remain in force for a period of up to one year after the epidemic has ended.
The Anti-Ccovid Act also provides for limiting the amount of various types of severance pays
provided to employees dismissed from work.

d) Suspension of employee welfare-aimed activities. Pursuant to the Anti-Crisis Shield,
employers may also unilaterally suspend the running of the welfare activities (operation of the
company welfare funds financed by them).

5. Civil law contracts are widely used in Poland as the basis for work performance. Such contracts
usually imply less favourable terms of employment (compared to offered under contracts of
employment), as they are not governed by labour law. For this reason, they are oftentimes referred
to as "junk contracts". However, the Anti-Covid Act has provided for certain forms of assistance to
persons employed under civil law contracts. Above all, the so-called standby pay should be
mentioned in that respect, payable in the event of downtime in the business of self-employed
persons or persons with whom civil law contracts have been concluded. The standby pay amounts,
as a rule, to 80% of the minimum wage. Moreover, the state may subsidise the remuneration of
persons employed under civil law contracts, as well as business deductible expenses of self-
employed persons, up to 90% of the minimum wage. In return, the entrepreneur is expected to keep
the employees covered by the subsidies. In order to counteract the negative effects of COVID-19, it
is also possible to grant a low-interest loan to small entrepreneurs to fund the current costs of
running a business.

6. Summary. The most important labour law regulations presented above, adopted in order to
combat the effects of the coronavirus epidemic, constitute a significant part of the so-called Anti-
Crisis Shield. Their main goal is to save jobs that are at risk of liquidation. In search for some kind
of objective standards to measure the effectiveness of the efforts taken it should be observed that
they largely meet the hopes placed in them. This is evidenced primarily by the relatively small
increase in registered unemployment in Poland. Just before the epidemic, its rate was 5.2%,
currently reaching 6.2%. This is much less than what was forecast in spring 2020, when a future
level likely to exceed 10% was expected. Obviously, the solutions that weaken the protection of
employees, burdening them with the costs of fighting the crisis, are of concern. Fortunately, these
are only temporary regulations, to be lifted after the epidemic is over. Paradoxical though it may
seem, the epidemic also has some positive effects. These include, first of all, an accelerated
development of digital technologies, i.e. various types of electronic services. The popularisation of
distant work falls within that trend. By estimates, over 52% of micro, small and medium-sized

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enterprises use telework, a hybrid system combining remote work with that stationary being the
most popular. According to the government's plans, the regulations concerning distant work are to
be permanently introduced into the Labor Code.

                                                                                     Jakub Stelina
                                                                               University of Gdansk

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