COVID-19 vs employee salary in Poland
Can the employer whose workplace is situated in Poland send the employee on vacation in a situation where he is forced to shorten the working hours in the workplace due to the situation caused by the coronavirus? What if employer has to close his workplace (or part of it) due to coronavirus situation?
You will find answers to those questions below.
Can employer send the employee in Poland on vacation without his consent?
Overdue leave - the employer can send the employee to overdue leave.
In accordance with art. 161 of the Polish Labor Code, the employer is obliged to grant the employee annual leave in the calendar year in which the employee obtained the right to it. Pursuant to art. 163 of the Labor Code leaves should be granted in accordance with the vacation schedule. If the employer does not draw up a vacation plan (he has the option when his trade union organization does not work or if the trade union organization has agreed to it), then the employer sets the date of the leave after agreement with the employee. When setting the date of use of leave in this mode, the employer, similarly as in the case of determining the leave plan, is obliged to take into account the employee's request and the need to ensure the normal course of work.
In accordance with art. 168 of the Labor Code unused leave within the time limit set in accordance with art. 163 of the Labor Code (i.e. on the date set in the leave plan or after consulting the employee) should be granted to the employee by 30 September at the latest of the following calendar year. According to the Supreme Court, in this case the employer is not obliged to agree with the employee the date of use of the leave, but must grant him leave within the time limit specified in the aforementioned provision (in the previous version), i.e. until the end of the first quarter of the following calendar year. Granting based on art. 186 of the Code of Civil Procedure holiday leave for previous years in the first quarter of the following year does not require the employee's consent also when the period of notice of termination of the employment contract runs (judgment of 2 September 2003, I PK 403/02, OSNP from 2004 No. 18, item 310).
In a judgment of 25 January 2005 (I PK 124/05, Labor Law Monitor of 2006, No. 3, p. 119), the Supreme Court stated that an employer may send an employee to leave overdue, even if he does not express it consent.
Current vacation leave and unpaid leave
An employer cannot send an employee on unpaid leave or current leave due to the temporary closure of the workplace. Unpaid leave is granted at the employee's request, and the leave is determined in consultation with the employee. The employer cannot decide for himself when the employee will be off. In addition, vacation leave is intended to provide rest and should not be considered as a way to improve the company's financial position.
An employer cannot, due to his needs, grant an employee unpaid leave. Granting unpaid leave - in accordance with art. 174 § 1 of the Labor Code - depends on the will of the employer, this is not his obligation. However, the employer can make a decision in this matter only on the basis of the employee's prior application for leave. Granting it, on the initiative of the workplace and without the employee's written request for such leave, is legally ineffective. In the presented situation, the employer cannot send its employees on unpaid leave. He will be able to do so only at their written request.
What if the employer has to close his workplace (or part of it)? Is the employee entitled to remuneration then?
In such a situation or when it is not possible to recommend an employee to work remotely, the employee for the time of not doing work - if he was ready to perform it, and suffered obstacles for reasons related to the employer - is entitled to remuneration:
• resulting from his personal grade, determined by hourly or monthly rate (this applies to employees remunerated at a fixed hourly rate, e.g. PLN 20 per hour or at a fixed monthly rate, e.g. PLN 4,000 per month - these employees will also receive these during downtime rates of pay)
• if the aforementioned component of remuneration has not been separated in determining the terms of remuneration - the employee is entitled to 60 percent. remuneration (this applies to, among others, employees who receive piecework or commission remuneration, i.e. remuneration defined as the rate for the quantity of products manufactured or a certain percentage of income / income / profit)
In all other cases, this remuneration may not, however, be lower than the minimum remuneration for work. It should be acknowledged that the need to close the workplace in order to counteract COVID-19 will be a reason for the employer - although it will be a cause not attributable to the employer.