The COVID-19 Response Act
On 2 March 2020, the Sejm adopted the Act on Special Measures to Prevent, Counter and Combat COVID-19, Other Infectious Diseases and the Crises They Cause (Journal of Laws 2020, item 374), the ‘COVID-19 Response Act’. Given the urgency, it entered into force on 8 March this year.
Remote work with immediate effect
To avoid unnecessary infection risk, employers may now instruct an employee to work remotely. This new arrangement, temporary like all the Act’s measures, has been termed remote work.
Remote work is not subject to the formal requirements for telework in Chapter IIb of the Labour Code (Article 675– 6717). The government has announced that subsequent legislation will clarify the rules. Given the limited regulation, some telework provisions could arguably apply by analogy already, though the particular circumstances of introducing remote work must be considered.
In particular, it seems reasonable to apply Article 6711 of the Labour Code on providing equipment, support and technical assistance necessary for remote work, Article 6712 on data protection, and Article 6713 of the Labour Code on communication. Likewise, employees must not suffer discrimination because they work remotely (Article 6715 of the Labour Code).
However, the rules that cannot apply are those concerning arrangements with trade unions and employee representatives (Article 676 and Article 677 of the Labour Code), requests to stop working in this way (Article 678 of the Labour Code), or the right to access the workplace (Article 6716 of the Labour Code). Finally, the rules on monitoring work should apply with appropriate adjustments (Article 6714). In my view, an employee’s refusal to work remotely would constitute a serious breach of fundamental duties, justifying disciplinary dismissal: termination without notice through the employee’s fault.
‘Remote work is not subject to the formal requirements for telework in Chapter IIb of the Labour Code (Article 675– 6717).”
Childcare
We must now realistically consider that normal education may not resume before the end of this school year. Under Article 4 of the COVID-19 Response Act, an insured person caring for a child under eight because a nursery, children’s club, nursery school or school has closed is entitled to an additional carer’s allowance for up to 14 days. Those days do not count towards the 60-day allowance available under the ordinary rules.
Public procurement flexibility
Where there is a high risk of rapid, uncontrolled spread of disease or public health protection requires it, Article 6 of the COVID-19 Response Act excludes the Public Procurement Law from contracts for goods or services necessary to counter the epidemic’s development.
Exclusion of building law requirements
For COVID-19 response purposes, designing, constructing, rebuilding, renovating, maintaining and demolishing structures, and changing their use, are exempt from provisions including the Building Law, the Spatial Planning and Development Act and heritage protection legislation (Article 12 of the COVID-19 Response Act).
Restrictions in the hotel sector and building law
The amendment to hotel services legislation effectively prohibits such services in ‘other establishments’, including houses, flats, rooms, accommodation and campsites, unless registered with the voivodeship marshals or municipal authorities. Unregistered premises are deemed by law not to meet sanitary requirements.
The Chief Sanitary Inspector has also prepared detailed instructions for hotel managers (https://www.gov.pl/web/rozwoj/instrukcja-postepowania-dla-obiektow-hotelarskich).
Exclusion of liability for loss in transport
Transport infrastructure managers, including airports and stations, and air, rail and road carriers are not liable for loss connected with public authorities’ COVID-19 response measures, including inability to provide transport.
Special powers of public authorities
The Act also gives special powers to the Prime Minister, voivodes and Chief Sanitary Inspector. Their powers expand to include issuing binding instructions to businesses by administrative decision. Such a decision needs no reasons and is immediately enforceable upon service or announcement. Instructions may also be given orally, by telephone or electronically. They may be implemented through a civil-law agreement between the business and voivode. If the business refuses to sign, compulsory enforcement of the administrative decision replaces the agreement.
The Act also introduces numerous amendments to existing legislation, collectively aimed at preventing the epidemic’s spread and limiting its scale and effects. They include ensuring production and delivery of sufficient medicinal products, medical devices and foods for special dietary uses, organising medical services and maintaining order and safety during the epidemic.
State of epidemic threat
Alongside the Act, on 13 March 2020 the Minister of Health issued a regulation declaring a state of epidemic threat in Poland under Article 46(2) and (4) of the Act of 5 December 2008 on Preventing and Combating Infections and Infectious Diseases in Humans. It restricts movement, prohibits certain activities, limits the operation of specified institutions and workplaces, and generally bans gatherings of more than 50 people.
Restrictions introduced
From 14 March 2020 until further notice, trade restrictions aim to ensure adequate supplies of medical equipment and personal protective equipment. Exporting or selling ventilators and cardiac monitors outside Poland is prohibited. Export or sale of protective goggles, TYVEK suits, FFP2/FFP3 masks, surgical masks, shoe covers, latex and nitrile gloves, and disinfectants for hands, surfaces and premises requires notification to the voivode responsible for the business’s registered office or residence at least 24 hours before the planned export, listing the products and quantities to be exported or sold abroad.
Retail activity is generally prohibited in premises with a sales area exceeding 2,000 m², except for food shops, pharmacies, health and beauty shops, laundries, banks and financial establishments within them.
From 14 March 2020 until further notice, on-premises catering is entirely prohibited, covering restaurants, cafés, fast-food restaurants, traditional Polish canteens (milk bars), snack bars, ice-cream parlours, pizzerias and takeaway premises. Preparing and delivering food to the place ordered is excluded from the ban. Mass events such as fairs, exhibitions, congresses and conferences are also prohibited, as are collective sporting, entertainment and cultural events. Swimming pools, gyms, fitness clubs, cinemas, theatres, opera houses and music clubs will remain closed, as will libraries, museums and other cultural establishments. This also applies to pubs, beer halls, wine bars, other alcohol-consumption venues and casinos. Tourist accommodation, short-stay accommodation and spa treatment activities are similarly restricted.
Gatherings in public
The general prohibition ultimately covers every type of gathering with more than 50 participants.
Further measures to protect the economy
Alongside measures already introduced, work continues on a package to mitigate the epidemic’s economic effects. As of 19 March 2020, only the broad outlines of the Anti-Crisis Shield are known. We will endeavour to keep you informed of the legal measures presented.
In these circumstances, the Ministry of Finance and National Revenue Administration encourage contact with tax offices through e-PUAP. Remember the existing options for remission, deferral or instalment payment of tax liabilities.
*‘Salus populi suprema lex esto’ (Latin: ‘Let the welfare — health, safety and prosperity — of the people be the supreme law’). The ancient Roman politician, lawyer and philosopher Cicero set out this principle in Book III of On the Laws (De Legibus).
We also write about other challenges posed by COVID-19:
