State of epidemic emergency in Poland: What it means for employers

Poland has declared a state of emergency due to the risk of SARS-CoV-2 (COViD-19) epidemic. The state of epidemic emergency came into force on 14 March 2020 and will remain until further notice. This implies certain bans and orders not only regarding health protection but also directly affecting enterprises (employers). 

 

 

 

According to the Act on Preventing and Fighting Human Infections and Contagious Diseases, a state of epidemic emergency is introduced by operation of law in a given territory in order to implement protective measures specified in the act in response to the risk of epidemic. The risk of epidemic means the occurrence of certain conditions or circumstances indicating that there is a danger of an epidemic.  

Noteworthy, the current situation results from the risk and not the actual occurrence of an epidemic. Should there be an epidemic in Poland, the statute provides for a different state of emergency (state of epidemic), but the rights and prerogatives held by the minister competent for health in this respect are similar. 

One of the temporary restrictions of the movement of people introduced by the Regulation is the suspension of passenger rail traffic involving the crossing of the Polish border in the period from 15 March 2020 until further notice. Additionally, persons who cross the Polish border travelling to their permanent or temporary address in Poland must inform the Border Guard about their permanent or temporary address and telephone number as well as undergo a 14-day quarantine. . 

The Polish government also issued on 13 March 2020 (and amended on 17 March 2020) the Regulation announcing temporary suspension or limitation of border traffic on certain border crossings, according to which only persons listed in that regulation are allowed to enter Poland. The list includes, among others, Polish citizens, foreigners who are spouses or children of Polish citizens and remain under their permanent care, foreigners who hold a Pole's Card (Karta Polaka), foreigners who have the right to work in Poland and who drive a vehicle carrying people or goods if their drive it as part of their professional carriage of goods and people. 

Relevant for employers is the fact that the obligatory quarantine does not apply to employees who work in a neighbouring country and cross the border as part of their employment duties in that country, as well as to employees covered by Article 20 of the Schengen Borders Code). Those employees will still be allowed to cross the Polish border and perform their work as usual. So this will not reduce the availability of employees or stop working processes in the company despite the closing of the Polish borders. 

According to the Schengen Borders Code, EU Member States must not close borders to EU citizens. They may only introduce border checks for reasons specified in Title III of the Code. Every refusal of entry to Poland should be communicated to the affected EU citizen in the form of administrative decision, which is appealable. Also the Polish Border Protection Act (of 1990) does not permit closing all borders. The act only allows temporary suspension or limitation of traffic on some border crossings, taking into account the necessity to ensure national or public security or the protection of life and health of humans and animals and the prevention of the spread of animal diseases.

The above act was invoked in the Regulation of 13 March, as amended by the Regulation of 17 March 2020, which temporarily limits the inbound traffic to Poland to certain groups of people. According to § 3(2)(6) of the regulation, such people include foreigners with the right to work in Poland who:

Thus, persons who may work in Poland on the same terms as Polish citizens, hold a work permit or a document confirming the entry in the seasonal workers records or a statement on posting a foreigner to work in Poland, but who do not come from the neighbouring countries and do not cross the border as part of their professional duties, may enter Poland but will have to undergo a 14-day quarantine . 

In such a case, if the employer cannot instruct the employee to telework, he may be obliged under Article 92 of the Labour Code to pay the employee the sick pay for the obligatory quarantine period based on documents confirming that the employee was quarantined. However, it will be hard for the employee to prove this fact because sanitary authorities do not issue decisions on quarantine.   

The obligatory quarantine does not apply to employed drivers. This is of key importance for transport companies because the emergency situation and the related regulations will not reduce the chain of supplies, the flow of goods and the availability of drivers. 

The regulation has limited the performance of specific business activities starting from 14 March 2020 until further notice. The limitation applies first of all to activities including without limitation the preparation and serving of meals (except meals for take away), organising, promoting or managing events such as trade fairs or exhibitions, including the management and supply of workers who serve the areas and facilities where such events are held. 

Temporary restriction of retail trade in e.g. textiles, clothes or furniture, has been introduced in commercial facilities with a sales area exceeding 2000 m2. 

Will employers have to pay salaries if companies are temporarily closed? According to Article 81 of the Labour Code, if an employee is ready to perform work but is unable to work for reasons attributable to the employer, the employee is entitled to the remuneration for the time of not working according to his individual pay grade set as an hourly or monthly rate, and if this component of remuneration was not established when setting the remuneration conditions – 60 per cent of the employee's remuneration. However, in no case may the remuneration be lower than the minimum wage as determined under separate provisions. The employee is entitled to the above-mentioned remuneration for the period of downtime not caused by the employee. No remuneration is due if the downtime results from the employee's fault.

Temporary closure of the company leads to downtime; considering the current situation, temporary closures are not attributable to employers. According to literature, downtime referred to in the relevant provisions “may result from events affecting the employer, employee, third parties, or from force majeure or coincidence” (cf. Barbara Wagner [in:] Florek Ludwik (ed.), Kodeks pracy. Komentarz [The Labour Code. A Commentary], 7th issue). As the Supreme Court points out, “downtime implies an element of surprise or the occurrence of untypical or exceptional events that hinder a reasonably precise planning and scheduling of work breaks” (resolution of the Supreme Court of 16 October 1992, file no. I PZP 58/92).

But in order to be entitled to downtime pay, the employee must remain on standby. “If the employee is not ready to perform work, the court cannot award remuneration not only for the standby period (Article 81(1) of the Labour Code) but also for the downtime period (Article 81(2)-(4) of the Labour Code) because the employee's readiness to work is a fundamental condition for awarding remuneration for downtime” (cf. judgment of the Supreme Court of 7 December 2006, file no. I PK 169/06).

If the company is temporarily closed, there comes a question whether the employee can be requested to perform another job during the closure period. According to Article 81(3) of the Labour Code, the employer may let the employee perform another appropriate job for a remuneration due for that job but not lower than the remuneration determined according to the rules presented above. The expression “another appropriate job” referred to in that provision “means a job for which the employee is fully or to a large extent qualified and which he is able to perform” (see the judgment of the Supreme Court of 11 March 1980, file no. I PR 7/80). The employer should consider those criteria whenever he lets his employees do other jobs during the period of closure (e.g. when a shopping centre is temporarily shut down due to the state of epidemic emergency).

  

Further restrictions may be implemented if the nature and extent of the epidemic or the risk of epidemic surpasses the capacities of the competent central and local government units. In such a case, the Council of Ministers may issue a regulation specifying the risk area and delimitating the zone affected by the epidemic or the risk of epidemic, as well as impose additional obligations/bans, e.g. the obligation to undergo medical tests and apply other preventive measures and treatments by persons who are sick or suspected to be sick. 

The parliament is currently working on a bill amending the Act on Specific Steps to Prevent and Combat COVID-19, Other Contagious Diseases and the Crises They Cause, so there is a chance that the amended statute will answer the questions and solve the problems that have emerged in the present situation. According to the amendments, employers will be exempt from the obligation to pay the salary or will be entitled to pay the salary from the Guaranteed Employee Benefits Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych) to quarantined or hospitalised employees, or the salaries will be subsidies from the Treasury if the company’s operations are suspended.