Flood and the rights and obligations of employers and employees.
After the September flood, a state of natural disaster was declared in 749 towns and cities in Poland. A great clean-up and counting of losses is underway. The flood has caused multidimensional difficulties that affect the daily functioning of both employees and employers. This requires mutual understanding, flexibility and cooperation from both parties in order to minimize the negative effects and return to normality as soon as possible. What rights does an employee have during a flood? What are the employer’s obligations? We present the most important information and changes resulting primarily from the provisions amending the Act of 16 September 2011 on special solutions related to removing the effects of flooding.
Rights and obligations of a worker affected by flooding
Flood situation as a basis for justifying absence from work
Pursuant to § 1 of the Regulation of the Ministry of Labour and Social Policy of 15 May 1996 on the method of justifying absence from work and granting employees leave from work (Journal of Laws of 2014.11.24), the reasons justifying the employee’s absence from work are, m.in,
- events and circumstances specified in the provisions of the labour law that prevent the employee from reporting to work and performing it,
- other cases of inability to perform work, indicated by the employee and considered by the employer to justify absence from work.
A flood situation is therefore the basis for justifying absence from work when the flood prevents the employee from reaching the workplace, e.g. due to flooding of roads or traffic disruptions. However, it is important that the employee immediately informs the employer about his or her situation.
For the time of excused absence due to flooding, the employee is entitled to an appropriate part of the minimum wage, determined on the basis of separate regulations, for a period not longer than 10 working days resulting from his or her working time schedule (Article 8(2) of the Act of 16 September 2011 on special solutions related to removing the effects of flooding, Journal of Laws of 2024, item 654). However, this provision does not apply to employees whose entitlement to remuneration for the period of excused absence from work due to flooding or to another form of compensation for lost remuneration on this account results from separate regulations.
Leave from work due to force majeure
According to Art. 148 (1). In the event of inability to perform work due to force majeure, the employee has the right to be off work for 2 days or 16 hours (applies to full-time employees; for a part-time employee, the time off is determined in proportion to the number of hours of work). For such absence from work, the employee receives a salary of 50%.
Leave from work is granted in urgent matters, e.g. family matters caused by illness or accident, if the immediate presence of the employee is necessary. Force majeure is an extraordinary, external event that could not have been predicted, but also impossible to prevent. This means that we cannot predict such an absence in advance.
The employer is obliged to grant the leave if the employee submits an application no later than on the day of taking the leave, provided that the conditions have been met. An application for exemption due to force majeure can be submitted in writing and electronically, or even by SMS. This is justified by the nature of the absence, which cannot be predicted.
Leave on demand for employees affected by flooding and additional leave for those struggling with the effects of flooding
According to Art. 167(2) of the Labour Code, the employee is entitled to 4 days of leave on demand in a calendar year. The amended Flood Act of 2024 increases the number of days of leave on demand by 4 days (i.e. a total of 8 days of leave on demand) for employees living in the flood area, to be used by the end of December 2024. The employee should report the leave no later than on the day it begins. Leave on demand is part of annual leave, so it is included in the total amount of leave to which the employee is entitled.
The employee has the opportunity to take a day off immediately. However, an employer may refuse to grant an employee leave on demand due to special circumstances that make the employee’s presence at work necessary for his or her exceptional interest to be protected. Leave on demand is part of annual leave and is subject to the same rules; Therefore, it is granted at the employee’s request with the employer’s consent. An employee cannot start leave on demand until the employer grants it. If it was not possible to submit the request before the start of the leave, the employee should complete the leave request, in the manner adopted in the given workplace, on the first day after returning from leave on demand.
In addition, employees whose home has been damaged by the recent flooding are entitled to 20 days of paid time off work, with 100% pay. The remuneration for this time can be partially covered by the Guaranteed Employee Benefits Fund. In order to obtain such support, the employer should submit an application through the provincial labour office competent for the place of business.
Childcare in the event of school, kindergarten or nursery closure
In accordance with the provisions of the Act on cash benefits from social insurance in the event of illness and maternity (Journal of Laws 2023.0.2780), when a nursery, kindergarten or school is closed unforeseen, an employee with sickness insurance is entitled to a care allowance for a child up to 8 years of age. In order to obtain an additional care allowance, the employee submits to the employer a statement on the unforeseen closure of the facility and an application for payment of the allowance on form Z-15. The childcare allowance is granted for each day of caring for a child in the amount of 80% of the basis for calculating the sickness benefit.
Leave – childcare under Article 188 of the Labour Code
This leave is available to every employee who brings up at least one child up to 14 years of age, regardless of the length of service and working time. The right to the exemption is granted until the youngest of the employee’s children turns 14. If both parents are employed, one of them can exercise the right. It is also possible for parents to divide and take advantage of each one day. Along with the application, the employee should submit to the employer a statement of no intention to use the sick leave by the other parent. The length of the leave from work for childcare is 16 hours or 2 days in a calendar year and is independent of the number of children meeting the age criterion and is cared for by the employee.
Additional rights of employees
At the employee’s request, the company may grant a leave of absence from work to deal with personal matters. According to Art. 151 § 21 of the Labour Code, the employee should work off such a leave from work, and the time worked off is not overtime.
The employer may also grant unpaid leave to the employee at the employee’s written request (Article 174 of the Labour Code).
Compensation during downtime during flooding
If the workplace is not functioning, the employer is obliged to pay remuneration for the downtime, even if the employee does not perform work during this time. According to Art. 81 of the Labour Code, an employee is entitled to remuneration for the time of non-performance of work, if he was ready to perform it and was hindered for reasons related to the employer.
The remuneration is due in the amount resulting from the employee’s personal classification, determined by an hourly or monthly rate (i.e. most often the basic salary). If such a component of remuneration has not been distinguished when determining the terms of remuneration (e.g. when an employee is paid on a piecework or commission basis), he or she is entitled to 60% of the remuneration. However, this salary cannot be lower than the minimum wage for work, which currently amounts to PLN 4300 gross.
Flood and changes in labour law
Pursuant to the special act (Journal of Laws, item 1473), an employee who cannot return to full-time work after a flood has the right to request a reduction in working time to a maximum of half time, and the employer (except in exceptional situations) cannot refuse to do so.
In addition, an employee affected by flooding cannot be posted outside the place of residence and ordered to work overtime.
It is also worth remembering that the provisions of the Labour Code provide that, for m.in period of the state of emergency and for the period of the next 3 months after its cancellation, the employer may issue an order to perform remote work, provided that the employee submits a statement in paper or electronic form immediately before issuing the order that he or she has the premises and technical conditions to perform remote work. It is worth noting that the employer has the right to revoke the remote work order at least two days in advance if the situation in the workplace improves.
Employee allowances for people affected by flooding
Employers can significantly help their employees affected by a natural disaster. This applies primarily to those employers who create a special fund for social assistance – the Company Social Benefits Fund (ZFŚS), which can be used to provide comprehensive assistance as part of social activities. In accordance with the regulations (Article 21(1)(26) of the Personal Income Tax Act), allowances received in the event of individual fortuitous events, natural disasters, long-term illness or death are exempt from income tax:
- from the social fund, the company social benefits fund, from the funds of trade unions or in accordance with separate regulations issued by the competent minister – regardless of their amount,
- from other sources – up to the amount not exceeding PLN 6000 in a tax year.
If the employer has not established the Company Social Benefits Fund and wants to support employees during the flood, it can pay the allowances from current assets.
Rights and obligations of employers during floods
Employee safety during floods
According to Art. 207 §§ 1 and 2 of the Labour Code, the employer is obliged to ensure safe working conditions, even in emergency situations, such as flooding. Employers should inform employees about all possible hazards, regularly monitor working conditions, assess risks and take appropriate measures, e.g. provide appropriate personal protective equipment if work in the plant is possible despite flooding. These activities are part of broader obligations under occupational health and safety (OHS) regulations.
Temporary assignment of other work during floods
The amended Act on special solutions related to the removal of the effects of flooding additionally provides that the employer may entrust the employee with the performance of work other than that resulting from the employment contract (i.e. change the scope of duties) if it is necessary in connection with the removal of the effects of flooding at this employer. In such a case, the employee retains the right to the previous remuneration, calculated in accordance with the rules applicable to the calculation of remuneration for the time of annual leave.
It is worth mentioning that no maximum period of such entrustment has been introduced, nor has there been a stipulation that the entrusted work should correspond to the employee’s qualifications. A temporary change in the scope of duties may apply not only to manual workers, but also, for example, to administrative employees.
Suspension of periodic examination obligations and longer deadline for periodic OHS training
The amended Act on special solutions related to the removal of flood effects (Journal of Laws, item 1473) suspends the obligations in the field of periodic inspections. The Act clearly specifies that after the end of the period specified in the regulations issued on the basis of Article 1(2), the employer and the employee are obliged to immediately resume the performance of the suspended duties referred to in paragraph 1 and perform them within a period not longer than 30 days from the date of the end of this period.
If there is no access to a physician authorized to conduct an initial or follow-up examination, such an examination may be carried out by another physician and an appropriate medical certificate may be issued (it expires after 30 days from the end of the period specified in the regulations). A medical certificate issued by another doctor is included in the employee’s personal file.
In the case of employees living in the flooded area, it is also allowed to conduct initial training in the field of occupational health and safety entirely via electronic means of communication (e-learning), with the exception of on-the-job training. The deadline for periodic OHS training has been extended to the 30th day from the date of expiry of the current regulations.
Financial support for employers
An employer who, as a result of a flood, has temporarily ceased to perform business activity or has serious financial problems, may apply for an interest-free loan from the Guaranteed Employee Benefits Fund (Article 23(1) of the Journal of Laws 2024.0.654). The funds obtained from this source can be used to pay salaries to employees and cover due social security contributions.
An employer who has maintained employment despite the destruction of part of the plant may apply for reimbursement of costs for maintaining current jobs. Such an application can be submitted to the labour office. Importantly, if due to the flood he does not pay the premiums on time, he will avoid penalties and interest. The relevant application must be submitted to the labor office by 31.12.2024.
In addition, entrepreneurs who suffered losses as a result of flooding will receive support in the amount of PLN 16,000 for each employee registered for insurance with the Social Insurance Institution (ZUS) or the equivalent of 75% of the average monthly income earned a year earlier. People running a sole proprietorship, seasonal activity, as well as employers can benefit from help.
Obligations of an employer employing Territorial Defence Forces soldiers and volunteer firefighters
In the context of the Homeland Defence Act, employers employing soldiers of the Territorial Defence Forces must take into account that soldiers may be called up to duty immediately. A similar situation applies to members of the Volunteer Fire Brigade (OSP). Pursuant to § 11 of the Regulation of the Ministry of Labour and Social Policy of 15 May 1996, the employer is obliged to release from work an employee who is a member of the Voluntary Fire Service – for the time necessary to participate in rescue operations and to perform duty (combating natural disasters and eliminating their effects) and for rest necessary after their completion, as well as – in the amount not exceeding a total of 6 days during a calendar year – for firefighting training. No remuneration is due for the time of the above sick leaves. If the employee takes the leave from work referred to above, the employer issues a certificate specifying the amount of lost remuneration for the time of such leave in order for the employee to obtain financial compensation from the competent authority.
Emergencies, such as flooding, require flexibility and cooperation between employer and employees. It is important to comply with the applicable law and to inform each other about the possibilities and limitations resulting from the situation. If in doubt, it is worth consulting the labour inspectorate or a lawyer specializing in labor law.
The National Labour Inspectorate has launched a special hotline for employees and employers from flooded areas, where experts provide answers to questions related to labour law in the context of the situation caused by the flood. The hotline is open from Monday to Friday from 9.00 a.m. to 3.00 p.m. at (22) 391 83 70.
Origin:
- ACT of 1 October 2024 amending the Act on special solutions related to removing the effects of flooding and certain other acts
- Rights and obligations of the employer | Biznes.gov.pl – Information and service service for entrepreneurs
- Absence from work due to flooding – Ministry of Family, Labour and Social Policy – Portal Gov.pl (www.gov.pl)
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