a position paper on remote work local country regulation.

introduction to the topic of remote work & local country regulation

In July 2020, Eurofound (the European Foundation for the Improvement of Living and Working Conditions) conducted an e-survey called 'Living, working and COVID-19', which showed that almost half of respondents (48%) worked at home at least part of their working time during the COVID-19 pandemic. Of these people, more than a third (34%) said they only worked from home.

The same research shows that the experiences of working from home during the COVID-19 crisis are positive for the majority of employees, who performed their work in this way. Most of the surveyed employees indicated satisfaction with the experience of working at home (70%).

In a July survey, 78% of employees indicated that they prefer to work from home in the future, at least occasionally, even if there will no longer be COVID-19 restrictions.

One of the key findings indicated by Eurofound was that if teleworking is to continue across the EU, social partners must seek to include provisions for workers on the voluntary nature of telework or the suitability of specific tasks to teleworking in any legal frameworks or agreements. Clarification about how employers can contribute to expenses linked to working from home, as well as guarantees of equal pay and access to training for those working remotely will also be critical.

Based on the report, a general statement can be made that remote work will be one of the most significant elements of the future way of work. This conclusion started motivating more and more countries to extensively analyze whether and – if yes – how remote work should be regulated in the domestic laws in their respective countries.

labor code, or rather, in-company law

There is a variety of real cases of remote work in practice depending on:

1. company size (large, small and medium-sized companies will have different possibilities, means and expectations on remote work);
2. sector and type of activity (production or some services activity will be less concentrated on this way of work);
3. the way of organizing remote work (total remote work, partial model of remote work, regular, irregular, incidental, optional).

Taking into account so many varieties, the recommended model of introducing remote work in the country would be:

1. Very general principles of remote work on a national level, i.e. in the labor Code;
2. Internal regulations on a company level to introduce a concrete model of remote work (for whom, how, on which terms & conditions).
3. Details to be agreed individually between an employee and an employer.

key points to be considered for regulation

There are some key elements that each country should take into consideration in the process of remote work regulation:

1. The widest possible definition of remote work and a wide approach as to the place of remote work;
2. Way of introducing remote work in the company, and options to be used;
3. Costs covered by the employer vs. benefits from remote work for both parties;
4. Health & safety at remote work environment;
5. Attention to data protection and confidentiality of information.

Ad. 1) Definition of remote work and regulation on the place of remote work

The definition of remote work should include all possible options to be used in practical cases:

1. full remote work (100% of the working time).
2. partial remote work (regular, irregular, optional, incidental).

Both forms can be introduced from the initiative of an employee, an employer or constitute a result of mutual agreement of both parties. Implementing remote work can take place either in the process of concluding an employment contract (from the beginning of employment) or during the employment (as an annex to employment contract or in the separate individual agreement with an employee).

A very important part of the remote work regulation is the place, where the remote work can be performed from. This could be:

1. the home of an employee or other clearly defined place (e.g. rented office), or
2. the city as an area, e.g. Warsaw, or
3. a general rule that work will be performed outside the company’s office and it will be at employee’s discretion to pick up the current place (and this could be an apartment, train, café etc.).

Please note that determination of the place of remote work could be an important factor for employer’s responsibility for health & safety conditions at work. In the case of the employee's discretion to choose the place of work, it is suggested that the employer's responsibility for performing work in such a place should be limited to providing information about the risks associated with performing remote work in different places and taking responsibility for the tools and materials provided to perform work. More responsibility can be attached to the place of residence, where the environment of work is more predictable.

Ad. 2) The rules of introducing remote work on a company level and the option to resign from remote work

Internal regulations for remote work should stay on the company level and be introduced:

1. either through general agreement with trade unions or employee representatives containing the most important principles (what groups of employees, methods of calculations of equivalent for employee (if applicable), health and safety general rules etc.), or
2. by individual agreement between employer and employee.

We can expect and assume that large companies or those companies, in which trade unions operate, will rather introduce regulations on a more structured and higher level, while smaller companies will use individual agreements with each employee. 

An important point is to regulate cases, when the employer can order remote work one-sidedly. The recommended solution would be to introduce that option in emergency cases such as a state of epidemic or the lack of possibility to provide health and safety work (e.g. bomb alarm, flood, lack of electricity in the company).

In the companies when remote work is formally not implemented at all, an interesting option could be the possibility to use “incidental remote work” pursuant to the employee’s request. For example, in the case of children’s sickness or the incidental necessity to stay home.

In terms of resignation from remote work we can have two options: a) total remote work – no possibility to resign, b) partial remote work – both parties can resign within the agreed period of time (e.g.. 3 months) and come back to the traditional way of working. After an agreed period, resignation from remote work would require a termination notice of terms and conditions of remote work.

Ad. 3) Costs covered by the employer vs. benefits from remote work for both parties

There are different types of costs and benefits when working remotely. Some potential benefits include: no travel costs, usually 8 hours of work without having to spend time travelling, flexibility related to the possibility of doing some minor household activities during work, longer childcare or longer time with the family, casual dress code, lower levels of infection from seasonal flu, fewer sick leaves during the season or even the possibility of continuing work (or study) for people with mild colds, etc. The costs expected by employees to be borne by employers may be related to providing them not only direct work tools (computer, telephone, office materials, printers), but also whole work environment settings (e.g. desk, chairs, lamps etc.), as well as covering costs of using private equipment, costs of Internet, electricity, water, part of rent, etc. The key question is, how far this participation of the employer is supposed to go: should the employer only cover basic work equipment (computers, telephones, paper, printer), or also pay for the work environment ergonomic arrangements (desk, chair) or even the operating cost of, for example, Internet or electricity? Or should it be also considered a general compensation for working from home, based on the assumption that employers do not have to bear office costs? The other point to take into account is whether there are local regulations which may restrict using accommodation for business purposes or have tax implications for the employee? All these questions are very difficult and definitely flexibility on both sides of the employment relationship is needed here. No rigid regulations at the level of the labor code is recommended, especially in terms of introducing a fixed compensation rate or a catalogue of materials and tools to be provided. For small employers these fixed rules may be an obstacle in introducing remote work at all, while a large employer may want to introduce a larger equivalent or, for example, pay the employee once a year one amount compensating for the use of the house. A recommended solution is definitely to allow employers and employees to regulate these elements flexibly on a company level and also allow them to determine themselves what kind of benefits – tangible or intangible - are more important for the specific group in the certain company. The company-approach seems to be the only legitimate approach, because the labor Code would not be able to provide a single algorithm for determining the coverage of such costs.

Ad. 4) Health & safety at remote work environment

Health & safety is a very difficult area when it comes to organizing remote work, controlling it and preventing work accidents. Private apartments require to be kept private and not many employees ever expect them to be controlled by employers. 

On the other hand, most of the labor codes will impose full responsibility on employers for providing a safe remote workplace, because during the working hours this is also a place of work, not only home. The legislation approach may be minimal, and assume that the employer should be responsible only for the equipment that he provides to the employee for the purpose of remote work (computer, telephone, connection cables), or the maximum, that employer is responsible equally as if work was done at the office. Neither of these solutions seems to be acceptable for both employees and employers. It is necessary to balance the interests of both parties and to try to distribute the emphasis of responsibility equally. The fact is, that employer, even if he would provide the employee with a fully organized work environment, has no real control over the employee's home. There are some ways to try to achieve the relative balance in this area:

1. creating a model of universal "occupational risk assessment card" for remote work, which would provide detailed information to the employee how to organize remote work at home in the safest possible way (providing that assessment card by the employer also manages the risk of employer’s responsibility for potential future accident at work);
2. receiving a statement from an employee that the place where remote work is performed is ready, safe and equipped with all elements required by the employer in the risk assessment (e.g., the desk is in the right place, there is proper lighting, etc.);
3. limiting the employer’s responsibility for other places of work than home (if freely picked up by the employee);
4. in case of accident - no responsibility for the workplace if the employee does not agree with the employer’s representative to check a place of accident.

Ad. 5) Data protection & confidential information

Provisions of the General Data Protection Regulation do not prohibit remote work, nor contain any special restrictions in this regard. Local regulations may, but do not have to, provide additional provisions other than already introduced by GDPR. Every organization should take into account the regulations contained in GDPR and adopting (i.e., “designing”) them properly to this new way of working seems to be sufficient enough. Certainly, performing duties of employees outside the company's premises may entail new risks and threats that must be taken into account when defining the company regulations and internal procedures for working remotely. It is very important to refresh and update all the general security principles referred to in a company's internal procedures and policies (privacy and security policies, clean desk and screen procedures, incident reporting procedures, manuals and training, etc.). Special attention should go to the need to protect the data against access by third parties. Also printing and collecting paper documents outside of the offices should be controlled and allowed only in necessary cases. Reminding and executing the rules on confidentiality, company secrets and rules on how different types of information are classified should be also a standard way of introducing and using remote work in each company.