Managing HR Through COVID-19
A Practical Guide For Multinational Employers
Prepared by Sołtysiński Kawecki & Szlęzak
As at April 6, 2020
This guide will help employers manage HR legal and practical issues arising from COVID-19.
- Good Practice Guidance giving high-level consideration;
- An Action Point Checklist drilling down into the detail; and
- Answers to Key Questions facing employers in Poland.
This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.
It has been prepared by Sołtysiński Kawecki & Szlęzak and is published with their kind permission. With thanks to:
Sołtysiński Kawecki & Szlęzak | Agata Szeliga | Agata.Szeliga@skslegal.pl | skslegal.pl/en
There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:
1. Keep up-to-date with accurate information
It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.
2. Know where your employees are and where they have been
An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.
3. Communicate with your employees
Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.
4. Provide a safe platform for employees to raise concerns
Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.
There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.
5. If you can be flexible, then be flexible
Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).
This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.
6. One size may not fit all
While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.
Action Point Checklist
In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.
- Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
- Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
- Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
- Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
- Ensure contact details for all staff are up-to-date.
- Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
- those who travel frequently to countries where there is currently or may well in future be a risk of infection.
- those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
- Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
- Review planning for the possibility of large scale absenteeism. For example:
- Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
- Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
- Considering flexible work patterns, such as employees working from home.
- Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).
- Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
- What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
- Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
- Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
- Ensure managers are aware of the relevant workplace policies.
- Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
- Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
- Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.
- Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
- Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
- How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
- Who will have the authority to determine changes to policy and issue any new communications to staff?
- Log employee travel before it is booked and check against the latest travel protocols.
- Ensure staff know that this applies to personal travel as well as business travel.
- Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
- Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
- Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.
As at April 6, 2020
1. What are an employer’s main legal obligations?
Pursuant to the Polish Labor Code, one of the key obligations of an employer is ensuring the occupational safety and health of its employees. The employer is also responsible for ensuring staff compliance with principles of occupational safety and health in the workplace.
The Polish Government has introduced a temporarily applicable Act of March 2, 2020 outlining special measures for preventing, combating and eliminating COVID-19 (“Special Act”). The Special Act has not specified additional obligations for employers regarding COVID-19 prevention, but employers are now able to order employees to work remotely without obtaining their prior consent (previously such consent was required). According to the Governmental guidelines, the employer should organize the work in a way which minimizes direct contact between employees for increasing safety.
2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?
Employers are obliged to provide safe working conditions. No specific COVID-19 plan is required, although the employer has to implement a consistent policy for accidents at work and occupational diseases prevention. Such a policy may be amended with specific provisions regarding virus prevention. Such amendment may be treated as a measure of providing safety and health within the organization. In the preparation or implementation of a COVID-19 emergency plan, it is recommended that employers take into account the guidelines and recommendation issued by both the WHO and the Polish Ministry of Family, Labor and Social Policy.
3. What should a workplace COVID-19 response plan cover?
If the employer decides to implement a specific COVID-19 response plan, it should cover the measures relating to infection prevention and the steps that will be taken where there is suspicion of infection within the workplace.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
The employer may require its employees to work remotely. Refusal of remote work, unless it is contrary to the applicable provisions of law or the employment contract, may result in the imposition of a disciplinary penalty on the employee. Remote working is not, however, a solution that will work for every position/role. The employer has an obligation to protect the safety and health of all employees. Thus, if there is no other option, it may suspend operations and direct employees to stay at home. In most cases, this will not deprive the employee of the right to remuneration for this period, as the suspension of work will be deemed to have occurred because of reasons relating to the employer, not the employee.
5. Can I direct an employee to see a doctor?
The employer is obliged to direct employees to a doctor for periodic health examinations. The legislation does not provide for the referral of an employee for examinations regarding the risk of contracting viral diseases. However, due to the current situation and an employer’s general obligation to provide safe conditions of work, the employer may order the employee to submit to a medical examination. However, if the order from the employer is based exclusively on a subjective observation, which does not correspond to the facts, referring the employee to preventive examinations may be considered an abuse of employer rights. Moreover, if the employer orders an employee to visit a doctor but the employee refuses and insists that they are ready to work, the employer that decides not to allow such an employee to work would have to treat the employee’s absence as justified.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
The employer is obliged to pay wages and provide other employment-related entitlements as the employment agreement will remain in force during the COVID-19 outbreak. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak. Notwithstanding that, an employer may terminate a contract of employment if the employee’s incapacity for work due to an employee illness lasts: (i) longer than three months (if the employee’s service with that employer has lasted less than six months), or (ii) longer than the total period for which the employee has received remuneration and sickness allowance on that account, and rehabilitation benefit for the first three months (if the employee’s length of service with that employer is at least six months).
The Government is contemplating various support measures to help the employers fulfill these obligations. The newly adopted law provides, in particular, the possibility to obtain the exemption from the obligation to pay social security contributions from 1 March 2020 to 31 May 2020 applicable to (i) employers with up to nine employees and (ii) sole traders (self-employed) whose revenues do not exceed 300% of the projected average gross monthly salary in the national economy in 2020.
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
Pursuant to the recommendation of the Polish National Labor Inspectorate (“PIP”), the employer is not entitled to assess whether an employee is healthy or not. However, the above-mentioned PIP statement was published prior to the adoption of the Special Act and before the first confirmed COVID-19 infection in Poland. Therefore, we recommend that employers follow the updated recommendations of the WHO. Pursuant to the WHO guidelines, an employer may apply temporary isolation to employees for the purposes of protecting the rest of the staff. Isolation should be carried out in accordance with an employee’s right to privacy and dignity, without using physical force regarding the employee. In our opinion, in the current situation, such actions, if properly carried out, would not be considered workplace harassment.
8. Can I direct my employees to report suspected cases of COVID-19?
As mentioned above, an employer is not entitled to assess whether an employee is healthy or not, but the PIP statement is now out-of-date. Pursuant to the recommendations we have obtained from the regional sanitary-epidemiological stations responsible for dealing with the outbreak, the employer should inform epidemiological authorities of every suspected case of infection or direct employees to report such cases.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
Pursuant to the current legislation, an employee is not entitled to refuse to attend work (or refuse remote working) unless the working conditions do not provide an adequate level of safety at work and pose a danger to the employee’s life or health, or if the work performed by an employee poses an imminent danger to other persons. In such cases, the employee should immediately inform the employer of the situation.
10. Can I screen employees and customers before allowing them to enter the workplace?
Employers are able to screen people who enter the employer’s premises for providing safe conditions of work. The screening may include both verification of health conditions, e.g., body temperature or other symptoms of the infection or introducing interviews/questionnaires regarding an individual’s travels to risk areas and possible contact with infected persons.
Such screening has to be carried out in compliance with data protection law, in particular, the EU General Data Protection Regulation (“GDPR”). Such processing must also comply with the data minimization principle and there must be an adequate legal basis for the processing. Regarding health conditions, such screening may be carried out in order to comply with obligations imposed on the employer or on the basis of employee consent. With regard to non-medical information, screening may be performed in order to ensure the safety of employees, i.e., for the legitimate interest of the employer.
CONTACT: Sołtysiński Kawecki & Szlęzak | Agata Szeliga | Agata.Szeliga@skslegal.pl | skslegal.pl/en
Appendix: Workplace COVID-19 Response Plan
A plan should deal with the following:
BEFORE AN OUTBREAK
- Preventive measures.
- Disinfecting the workplace regularly.
- Maintaining good indoor ventilation.
- Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
- Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
- If employees are required to travel to areas known to have the virus, whether such travel is necessary.
DURING AN OUTBREAK
- The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
- Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
- Where employees will work, e.g., home, in the office or in alternative temporary offices.
- At what stage will the workplace be closed and who will decide that.
- How to deal with infection and/or deaths of colleagues, e.g., counselling.
- A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
- What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).
AFTER AN OUTBREAK
- Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
- Rehabilitation for sick employees returning to the workplace.
Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:
- Discuss with staff the possibility of a workplace closure prior to closing.
- Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
- Allow employees to work from home.
- Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.
Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.