Newsletter - Labor Law: Labor Code amendment - August 1, 2022
On February 15, 2022, the Ministry of Family and Social Policy published a draft law on amendments to the Labor Code and other laws. This is an amendment to the labor law aimed at introducing into the Polish legal order the norms contained in the Directive of the European Parliament and of the Council (EU) 2019/1152 of June 20, 2019 on transparent and predictable working conditions in the European Union (Official Journal of the EU. L No. 186) and the Directive of the European Parliament and of the Council (EU) 2019/1158 of June 20, 2019 on work-life balance for parents and caregivers and repealing Council Directive 2010/18/EU (Official Journal of the EU. L No. 188). The deadline for implementing most of the changes introduced by the directives is August 1, 2022.
The first of the changes introduced in the bill is to provide protection against unfavorable treatment and negative consequences for employees exercising their rights under the Labor Code. Unlike EU regulations, the Polish amendment also extends protection to employees providing support to employees exercising their rights under the Labor Code (in other words, it will be more difficult to fire not only a “whistleblower” but also their helpers).
Employers will also lose the ability to prohibit employees from working for others except for employees with a non-compete agreement.
Another of the changes aimed at ensuring stability in the labor market is to specify the timeframe for which it is possible to conclude an employment contract for a trial period. In the case of an employment contract for a period of less than 6 months, a trial period contract can last up to one month, while in the case of an employment contract for a period between 6 and 12 months a trial period contract can last up to two months. At the same time, “in cases justified by the nature of the work” it is also possible to extend a contract for a trial period by one month. The possibility of concluding a contract for a trial period with an employee who has worked for the employer within 3 years has also been removed.
New obligations of employers
The information obligations of employers have been significantly expanded, and they must provide employees with a range of new information at the time of entering into an employment contract, much of which may be provided electronically. Failure to comply with information obligations will now constitute an offense against employee rights, punishable by a fine from PLN 1,000 to PLN 30,000.
One of the most significant changes is undoubtedly the imposition of an obligation on employers to justify the termination of fixed-term employment contracts and to notify the company’s trade union organization of this fact. In the event of unjustified termination of a fixed-term contract, the employee will gain the opportunity not only to demand compensation, but also reinstatement – in this case the provisions on unjustified termination of a fixed-term contract will apply (by analogy).
News on leave
The draft amendment also includes changes to leave. The first is to grant employees a 2-day leave of absence for force majeure, urgent family matters related to illness or accident. The employer’s granting of the exemption is mandatory, while the request for the exemption would be to be made by the employee no later than the day the exemption is taken. The employee would be entitled to half of his or her salary for the period of exemption. The second change is the granting of care leave at the rate of 5 days per year to provide care to a family member (understood as a son, daughter, mother, father or spouse) or a person in a joint household with the applicant.
Changes to the rules for taking parental leave mean that it is to accrue to the child’s mother regardless of her insured status on the date of birth, while the 9-week leave is to accrue to the child’s other parent and cannot be taken by the child’s mother. At the same time, paternity leave can be taken within 12 months of the child’s birth (currently it is 24 months).
Entitlements of Employees caring for children
The scope of Article 178 § 2 is also to be expanded, requiring the employee’s consent to be employed for overtime, nighttime, intermittent working hours and on assignment outside the permanent workplace if the employee is caring for a child up to the age of 4. The amendment, however, envisages expanding the group of eligible employees to include those caring for children up to the age of 8.
The newly added Article 1881 also provides for the entitlement of employees caring for children up to the age of 8 to request the application to them of flexible work arrangements, i.e. telecommuting, intermittent working hours, a shortened work week system, a weekend work system or a reduction in working hours. The employer is obliged to consider the request taking into account the needs of the employee and his capabilities, including the need to ensure continuity of work, work organization and the type of work performed by the employee.
Offenses against employee rights
Most of the changes introduced are fraught with sanctions for employers – as failure to comply with the new regulations will constitute a misdemeanor as well as a violation of obligations to employees.
The distribution of the burden of proof is also to change. Since the introduction of the amendment, the onus is to be on the employer to prove that the termination of an employment contract without notice due to the fault of an employee taking maternity, paternity, parental leave or requesting such leave or flexible work arrangements is justified by objective reasons. Also repealed is §2 of Article 177, which excluded from this protection female employees in a probationary period not exceeding one month.
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