Will turning back from remote work be a simple reversal of the situation when employers ordered their employees, often overnight, to carry out their tasks outside of the company? Will the return to stationary work be as simple as issuing a due order? Shouldn’t the perspective of returning to the “usual” labour law, including the planned regulation of remote work in the Labour Code, which during the ongoing pandemic seemed to have been forgotten by at least some of the employers, require soft measures as well, to support the return to the office?
Most definitely so. For instance in order to prepare for a situation in which both remote work and changing it to stationary or hybrid work would require employee’s consent. Current, very flexible regulations, the validity period of which is by its own nature limited, provide a unique chance to test various solutions in this respect without having to modify terms of contracts of employment. How to convince an employee to work remotely, how to convince them to go back to stationary work? These are the questions we must try to answer now. The legislator will not leave us that much room to decide as we have today.
Thanks to over a year of pandemic, remote work, legally understood as something ad hoc and temporary, has become a standard for many companies and employees. It has become an intrinsic element of our job market, slightly against the legislator’s intentions.
Art. 3 of the anti-covid act[1] offers us the simplest possible mechanism of introducing, modifying, and revoking remote work. For this purpose, it broadens executive competences of the employer, who may order their employee to work remotely, modify this order practically at will (e.g. introducing hybrid work), and then command them to return to stationary work.
Return to the office may be ordered whenever it is required by circumstances according to the employer's assessment. No justification is required from the employer and this issue remains in fact beyond the control of legal protection authorities, such as labour courts or the National Labour Inspectorate.
While an employee may refuse to work remotely (e.g. on the grounds of lacking necessary skills, housing or technical conditions), there are no grounds for refusing to return to the office. In particular, fear of becoming infected with coronavirus may not be a basis for refusal if the employer has fulfilled their obligations in terms of occupational safety and hygiene.
As a result, as long as Art. 3 of the anti-covid act remains in force in its current shape, return to the office may be ordered by the employer, and as a rule the employee will not be allowed to refuse to follow such an order. This formally simple mechanism of reintroducing stationary work may suggest to some that a full or partial retreat from remote work is a simple operation that can be executed without major difficulties. That is not so, and not for legal factors, which certainly favour the employers. Other factors, such as situation on the job market, won’t always work to their advantage.
In legal understanding, refusal to return to stationary works is failure to comply with a lawful work-related order (Art. 100 §1 of the Labour Code). This is a breach of one of fundamental employee obligations that may result in disciplinary sanctions, including termination of the contract of employment without notice.
So much and only so much at the same time can the employer do, that is why in practice, when the need arises for all or some employees to return to office, employers turn to soft measures allowing them to keep their employees and preventing their motivation loss.
Before ordering their employees to return to the office, employers should in the first place do their homework on occupational health and safety, including reassessment of occupational risk in each position (including psychosocial risks); introduce necessary changes in work environment and organization in order to minimize epidemic risks, etc. In brief: do everything possible to ensure that their work environment complies with OHS regulations and rules.
Unwillingness to return to the office is not always clearly articulated. It may take the form of mass sick leaves or complaints and requests about the company OHS conditions - namely - creating obstacles inhibiting normal company operation.
For this and other reasons employers are looking for solutions that would motivate employees to return and would not lead to an open conflict. Disciplinary measures, dismissal in particular, are treated as an exception, usually reserved for situations that threaten vital interests of the employer.
Employer’s influence on increasing occupational health and safety is significantly limited by having no means to control or even determine whether their employees havebeen vaccinated against COVID-19. There’s nothing the employer could do in this respect without proper, namely: statutory, basis for such actions. And according to all signs, we cannot expect such regulations. All that remains is to implement solutions that limit interpersonal contacts in the work environment wherever possible.
Some employers, acting on their experiences from the first waves of the pandemic, when everyday company operation was subject to many disturbances, offer various, mostly material, incentives to vaccinate (causing otherwise justified complaints, or even demands, about unequal treatment from those who vaccinated on their own accord), and some even request information about vaccinating. This is a risky practice, because it is against the law (Art. 9 of GDPR) and may lead to discrimination-related consequences.
The validity period of Art. 3 of the anti-covid act (currently unspecified), as well as the relative simplicity of legal instruments, both in terms of introducing remote work and returning to stationary work, could be used to prepare for final legal solutions which are supposed to introduce remote work to the Labour Code (in place of the current chapter on telework) as a fixed component of the country’s legal order.
Above all, employers should forget about their freedom to decide where an employee will do their job. Both the introduction of remote work and replacing it with stationary work, except for minor irrelevant exceptions, will no longer be the domain of the employer’s disposable right executed by means of an order. An agreement with the employee, and so their consent, will be necessary. Refusing to return to the office won’t constitute grounds for dismissal.
We're currently in a period, in which the employer can test and try various solutions in this respect, prepare and check in practice various instruments of obtaining employee acceptance for introduced changes in work organization, including returning from remote work to stationary (e.g. flexible work hours, material incentives).
Regardless of the final form of remote work regulations in the Code, one of the most difficult issues employers may face (and will face) is executing the order to comply with the principle of equal treatment in employment. So far, experience shows that in companies that allow for different work models, including stationary and remote, rights and interests of “remote employees” are more vulnerable. This can be illustrated by an example of a certain manager in a well-known corporation who is particularly prone to delegating tedious and dull tasks (there are some in almost every job) to remote workers instead to distributing them equally to all team members. Stationary employees, who have direct contact with the manager, successfully request tasks that are more ambitious and developmental. The manager gives in because, he explains, he doesn't have to look at unhappy faces and listen to complaints of remote employees, who - being outside of the company - are often unaware of their unfair treatment. At work, he only sees happy employees.
[1] Act of 2 March 2020 on special solutions related to preventing, counteracting, and combating COVID-19,other infectious diseases and the resulting crisis (consolidated text: Journal of Law 2020, item 374)
