COVID-19: Guidance for employers in Poland

What is the current level of restrictions in Poland?

From 28 December 2020 until 31 January 2021, Poland will be under a high level of anti-COVID restrictions, despite earlier plans for a national quarantine or a loosening of restrictions. The “month of responsibility” has been extended for another month.

On Monday 18 January, children from classes 1 to 3 returned to schools. Older classes continue to be taught on-line. 

The Polish government has published additional restrictions concerning social and business life that came into force on 28 December:

• Shopping centres will close (with the exception for grocery stores, drug stores, bookstores and “beauty” services, press agents; big furniture stores to remain open);
• Hotels will no longer be available for business travellers
• Skiing facilities are closed;
• Sport infrastructure is available for professionals only; and
• 10-day quarantine for people entering the country with public or organised transport.

The Polish Government asks all people to stay home and only go out if absolutely necessary. Everyone who can work remotely should do so. 

Almost all public offices continue to work remotely with only necessary services in-house.

The Act on the New Anti-crisis Shield for selected sectors came into force on 19 December 2020. Please find below detailed information in section 5, which may be important to your business.

The first COVID-19 vaccination in Poland has taken place. The Polish vaccination program aims to reach 3 million people by the end of March. From 15 January, the first groups of people can register to receive the vaccine (i.e. older adults (80+, 70+) and people with diagnosed dangerous diseases). Other groups are allowed to apply. 

There are guidelines for employers reopening workplaces, however remote working is still highly recommended. The ability for employers to unilaterally order remote working has been extended for the whole period of the pandemic and for a further three months afterwards. The length of obligatory quarantine has been shortened from 14 days to 10 days, with no obligation to undergo further COVID-19 tests.

On 28 November 2020, the Polish Government proposed a new way of imposing social restrictions in response to COVID-19. Currently, social restrictions apply throughout the whole country. The the following limitations are introduced, mainly limiting the number of people present at the same time: 

• Obligation to wear face covering in public spaces throughout the whole country.
• Weddings, funerals etc: all forbidden.
• Education: classes 1-3 back in schools since 18 January, higher classes continue on-line teaching (until cancellation). Kindergartens remain open.
• Children under 16 are allowed to go outside between 8 am and 4 pm without an adult. 
• Up to 5 persons from different households (except for families and at work) may gather in public and private spaces.
• People over 70 years old must stay home unless it is necessary to go out due to business activities, necessary daily activities or religious reasons. 
• Cultural institutions (theatres, cinemas, art galleries etc.) are closed.
• Gyms, swimming pools are closed.
• Churches: 1 person per 15 m2.
• Public transport: 50% of seats free, or 30% of seats and standing places free.
• All flight restrictions are cancelled.
  • If you enter Poland with public or organised transport (trains, planes, coaches etc.) you have to quarantine for 10 days (with exceptions). 
  • You can present a negative test for COVID-19, within 78 hours prior to crossing Polish border, to not have to be quarantined. Test result must be written in Polish or English. 
   

What are employers’ obligations in respect of COVID-19?

Occupational health and safety measures apply to employers, i.e.:

Mandatory:

• Additional security measures: order remote work whenever it is possible, individual workstations must be at least 1.5 m apart and employees must have protective measures in place (e.g. protective gloves, disinfectant fluids). Employer must decide that it is no longer mandatory to wear protective masks or other forms of mouth and nose coverings provided social distancing is maintained, unless the type of work performed does not require direct contact with third parties (e.g. clients, contractors etc.). There is a general obligation to limit exposure to the virus in the workplace and to take appropriate measures in this regards.

Recommended:

• There is a general obligation/duty of care to take appropriate measures to protect employee health and wellbeing may require specific actions to be taken with regard to COVID-19.
  
  
• Remote working is recommended. If this is not possible, appropriate sanitary measures have to be implemented to assure employees' protection (emphasis on health & safety internal regulations).
  
  
• There are limitations in place on employees being present at the same time (including in shared spaces, e.g. cafeterias) and employees to maintain a distance of at least 1.5 m from others.
  
  
• Protection of the most vulnerable group of employees (e.g. pregnant, chronically ill etc.).

If a company confirms that an employee has been exposed to or infected by COVID-19, summary:

a) There are no notification obligations required by law:

• Health authority: Local sanitary inspectorate (highly recommended if the infection among employees is confirmed).
  
  
• Company doctor (recommended, if applicable)
  
  
• Same site workforce (recommended)
  
  
• Customers (recommended) 

b) There are notification restrictions:

• Privacy of the impacted individual must be balanced against the need to protect other employees.

Issuing internal instructions / guidelines or policies is strongly recommended to regulate the steps to be taken in the workplace in case of COVID-19 infection. Isolation rooms are to be considered in order to protect staff from virus spread, once there is a high degree of probability that one of the employees is actually infected.

What financial assistance is the Government providing to employers?

• Anti-crisis Shield for selected sectors (which are closed due to anti-COVID restrictions):
  
  • Exemption from social security (ZUS) contributions: exemption from the obligation to pay due contributions for the period from 1 November 2020 to 30 November 2020, with the possibility of extension for subsequent months and for other sectors.
  • One-off additional standstill benefit - for persons who, as of 30 September 2020, conducted one of the specified types of activity, with the possibility of extending it for the next months and for other sectors.
  • Subsidy for micro and small enterprises - the amount of support will be up to PLN 5,000.
  • Co-financing of employees' salaries in the amount of PLN 2,000 monthly for 3 months.
  • Co-financing will also be granted to the remuneration of people employed under civil law contracts. Both, however, must be employed at least 3 months before submitting the application for benefits.
  • You can apply for support during next three months starting from 19 December 2020. Exemption from ZUS contributions started on 30 December 2020.
    
    
• The Shield for Selected Sectors provides financial support for 40 sectors (i.e. hotels, restaurants, people transportation, gyms, tourist agents, arts & culture services, medical and paramedical services – sectors that cannot operate due to COVID-19 restrictions). 
  
  
• Below please find the proposed rules of Anti-Crisis Shield 2.0
  
  • The European Commission accepted Anti-Crisis Shield 2.0. New loans and subsidies are available from 15 January 2021. 

• During the COVID-19 pandemic, employers may suspend obligations related to the Social Benefits Fund (its creation and functioning, making basic write-offs and to pay holiday benefits).
  
  
• The employer may unilaterally order an employee to use any outstanding annual holiday leave up to 30 days.
  
  
• An NCA may be terminated within a seven days' notice period.
  
  
• Severance payments, after meeting statutory requirements, might be capped at PLN 26,000 (approx. EUR 5,915).
  
  
• Parents and guardians will be entitled to an additional care allowance in the event of closure of schools, or the inability of the kindergarten or nursery to provide care. The additional care allowance will be granted until 31 January 2021.

Can employers request or require information from an employee, customer or workplace visitor about potential or actual exposure to the virus?

Yes, but with limitations. 

Employers are required to have the appropriate legal basis to process such data. Certain data related to potential or actual exposure to the virus may be treated as regular data (e.g. travel history), whereas other data (e.g. symptoms) are considered special categories of data. 

The legal basis for processing regular data may be legitimate interest based on the general obligation of an employer to assure health and safety. As for processing special categories of data, establishing a legal basis is more problematic. 

According to the Polish DPA (President of the Office of Personal Data Protection), the employer may collect and store information on symptoms of COVID-19 if the sanitary authority has ordered (in an individual decision) or provided general guidance or recommendations that the employer should take such a measure (in English here: https://uodo.gov.pl/en/553/1134).

Decisions are difficult to obtain. The sanitary authorities have issued over 60 different guidelines for various sectors / entities. The guidelines are inconsistent. Most of them do not cover the topic. However, for example, physiotherapists are explicitly allowed to ask visitors about symptoms - a draft questionnaire is suggested (https://www.gov.pl/web/rozwoj/rehabilitacja). Hairdressers and beauty salons should call their customers one day in advance and warn them that they should not come to the visit if they: (i) have symptoms; (ii) are under obligatory isolation or quarantine; (iii) live with a person who is subject to obligatory isolation or quarantine; or (iv) had  contact with a person suspected of being infected, falling ill or sent for isolation during the week (https://www.gov.pl/web/rozwoj/salony-kosmetyczne and https://www.gov.pl/web/rozwoj/salony-fryzjerskie). Some guidelines say that the employer needs to receive the employee's consent (i.e. an employee may provide information voluntarily). This should not be understood as GDPR consent, as according to the Polish DPA, the consent is not a valid legal basis for processing such data (consent needs to be freely given and in the case of special categories of data, it needs to be provided at the employee’s’ initiative).

Therefore, it might be difficult for employers to find the appropriate legal basis to collect and store information on symptoms of COVID-19 of its employees, customers and workplace visitors. Depending on the type of sector / entity, we recommend verifying this issue on a case-by-case basis. The guidelines are published on the Polish Ministries' websites, depending on their subject matter. Business related recommendations are mostly available here (in Polish): https://www.gov.pl/web/rozwoj-praca-technologia/wytyczne-dla-branz. 

In addition, a number of guidelines provide that employees and visitors who have symptoms should not come to work and various other locations (e.g. shopping centres - https://www.gov.pl/web/rozwoj/centra-handlowe). Therefore, the company may prohibit employees and visitors with symptoms from entering the premises instead of collecting information on COVID-19 symptoms through a dedicated questionnaire. 

Employers may also collect information about symptoms if the employee or visitor volunteers them.

Other data protection principles (e.g. transparency, retention, minimisation) apply to processing data about symptoms.

In practice, the employer should not collect this information unless it is necessary and proportionate to do so. For example, if the employees are not working from the office, or unlikely to come into contact with each other or customers or suppliers whilst carrying out their duties, collecting such data is unlikely to be deemed reasonable or proportionate. In all cases, employers should only collect and retain the minimum amount of information needed to fulfil their purpose in line with the data minimisation principle.

For workplaces that are open, what should employers do if an employee is absent or infected?

• Employees that have confirmed COVID-19 cases:
  • sick leave and sick pay under the regular sickness leave scheme
    
    
• Employees in quarantine or self-isolating (i.e. not confirmed COVID-19 cases):
  • regular pay during homeworking (as agreed between parties or imposed by the employer) if work may be performed remotely; or
  • sick pay under the regular sickness leave scheme if remote working is not possible
    
    
• Employers should take all protective occupational health and safety measures relating to any confirmed infection, especially with regard to disinfection.

What are employers' obligations where offices are partially or fully closed?

If the work cannot be performed due to partial / full office closure, employers may order remote working for the whole period of the epidemic and for three months thereafter. If the type and character of work may be done remotely, no further obligations are imposed when business continuity is maintained.

Employers may request one of the State Aid assistance measures, as described above. If the office is not open and there is no possibility to work remotely, the employer is obliged to pay remuneration to the employee in the amount of the basic salary specified in the employment contract. If this is not indicated, the employee is entitled to 60% of their remuneration.

If employees work from home, the employer needs to meet all occupational health and safety requirements, except the following:

• to ensure the safe and healthy condition of the work premises and technical equipment, as well as the effectiveness of the collective protection measures and their application in accordance with their intended use;
• to respect particular occupational health and safety conditions regarding buildings and work premises; and
• to provide appropriate hygiene and sanitation facilities and personal hygiene products for employees.
  

• In general, yes. Employers may discipline employees to comply with internal COVID-19 regulations (if applicable), and with general statutory obligations relating to occupational health and safety. The Polish Labour Code stipulates three forms of penalties (closed catalogue) which may be imposed on an employee due to their breach of duties under statutorily determined circumstances: warning, reprimand and financial penalty (employee’s maximum daily remuneration, in total the fines imposed may not exceed 1/10 of the employee’s monthly remuneration paid after statutory deductions).
  
  
• Disciplinary termination: in case of an employee's gross misconduct, the employer may immediately terminate the employment relationship without notice as a result of the employee's fault in the following cases:
  • the employee’s serious breach of his/her basic duties;
  • criminal offence committed by the employee during the employment that prevents the possibility of further employment in the current position, if the offence is obvious or declared by court in a final and non-appealable judgment;
  • loss of a licence necessary to perform work in the current position through the fault of the employee.
    
    Such a measure is extraordinary and should always be used carefully.
    
    
• As a rule, employees taking advantage of State Aid, as described above, enjoy special protection against termination for the whole period of co-financing. Thus, taking disciplinary action of termination within the regular (non-disciplinary) mode imposes the obligation on the employer to return the State Aid. The rules of returning the State Aid depend on the type and character of the particular State Aid form.

Where can employers and employees access local and national advice?

• Anti-Crisis Shield (click here)
• Government on COVID-19 (click here)
• The Main Sanitary Inspectorate (click here)
• The Ministry of Health (click here)
• The National Labour Inspectorate (click here)

Last update: January 2021