The special act adopted by the Sejm on combating coronavirus introduced few changes from the point of view of employees and employers. It only mentions the ability to instruct employees to perform tasks remotely. Many companies have chosen this way of working, but not all duties can be performed remotely.
Among others, postmen, couriers, cashiers, bus drivers and pharmacy staff must appear at work. Can they refuse to perform their duties because of the fear of coronavirus?
Coronavirus outbreak. Refusal to do the work is possible
Article 100 of the Labor Code obliges employees to perform their duties diligently, and to follow the instructions of their superiors regarding work. For unjustified refusal to perform work, the employer may apply sanctions and even disciplinary dismissal.
However, exceptions to this rule apply. In accordance with art. 210 of the Labor Code, an employee may refuse to perform his duties if the working conditions do not comply with health and safety regulations and pose a direct threat to health or life, or the work performed threatens such danger to other persons. The article also says that the employee retains the right to remuneration for the time of refraining from work or leaving the place of danger.
Coronavirus and work in delegation
Referring to this provision of the Labor Code and, for example, recommendations or messages published by state bodies - such as the Ministry of Foreign Affairs or the State Sanitary Inspection - an employee may refuse to go on a business trip to places at risk of coronavirus. Here, the matter seems clear. If the Ministry of Foreign Affairs advises against going to a specific country, then an employee, citing this ministry's announcement, may refuse to perform his duties.
But what if you work on site, directly with clients? Can a postman, cashier, courier or pharmacy employee refuse to come to work?
Fear of coronavirus and work
Interpretation of these provisions is not clear. The Labor Code does not contain regulations on such a specific situation as we are currently dealing with. Article 210 of the Labor Code indicates the possibility of refusing to perform work in the case of a threat to health or life, but only direct. The employee would have to prove that such a threat exists. It is not straightforward at all, because employers, in fulfilling their duty to protect employees' health and lives, provide them, or at least should, with adequate resources.
Polish Post informed that it equips postmen with hand sanitizing liquids or protective gloves, and creates security zones in branches - customers position themselves behind the 1.5-meter tape on the floor from the employee and approach the service station in turn - closer contact is only possible on an employee’s explicit request. Bus and tram drivers are also isolated from passengers - in many cities the option of buying a ticket from the driver has been removed. Trade employees receive disposable gloves, and clients are recommended to use card payments to avoid contact with cash.
- If the employer has provided safe working conditions, including provision of security measures appropriate to the occupation, the employee may not refuse to work. Unreasonable fear does not justify refusing to perform employee duties. In such a situation, the employer has the right to terminate the employment contract without notice due to the fault of the employee. However, I would be cautious about making such categorical decisions. The situation in the country is dynamic and it is currently difficult to assess the degree of threat to an employee, which in turn can make it difficult to assess the legitimacy of refusal to work - says Marta Kopeć, legal advisor and managing partner at Kopeć & Zaborowski.
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