The new Article 1481 of the Labor Code (at the time of submission to DGP for printing, the amendment to the Labor Code was awaiting the President's signature) provides that an employee is entitled to take up to two days or 16 hours off from work within a calendar year due to force majeure in urgent family matters caused by illness or accident, if the immediate presence of the employee is necessary. The employee retains the right to half of their salary during this time.
The employee decides on how to use this leave in the first application submitted during the calendar year. The employer is obligated to grant the leave upon the request made by the employee no later than on the day when the leave is taken.
The commented provision represents an unfortunate implementation of EU law, which, together with the use of the term "force majeure," should be interpreted as the right to refuse to perform work obligations, rather than as the right to submit a request for leave. At least, this is how force majeure has been understood since Roman law.
As a result of this, in my opinion, misguided implementation, there may be a mistaken impression that an employee who experiences a greater impact of force majeure than the mentioned two days within a calendar year has an absolute obligation to report to work.
It seems that the legislator is not aware of the regulation of the Minister of Labor and Social Policy of May 15, 1996, on the method of justifying absences from work and granting employees leave from work (Journal of Laws No. 60, item 281). Paragraph 1 of this regulation states that "the reasons justifying the absence of an employee from work are events and circumstances specified by the labor law provisions, which prevent the employee from reporting to work and providing work, as well as other cases of inability to perform work indicated by the employee and recognized by the employer as justifying absence from work."
These "other cases" refer to circumstances other than those resulting from, for example, illness, which are covered by the first sentence. The inability to perform work also includes situations that the commented provision has defined as force majeure. According to the Polish Language Dictionary PWN, "inability" means not only the inability to act but also the lack of favorable conditions to achieve something. We undoubtedly have such a lack of favorable conditions when an employee is faced with a choice between protecting their family member or place of residence and performing their job.
Chaos and regress
Furthermore, when making a decision to justify or not to justify an absence, the employer does not have discretion. They have an obligation to conduct a procedure, i.e., to establish the factual situation and then make a decision based on objective criteria. Moreover, since the legislator used the term "force majeure" in Article 1481 (1) of the Labor Code, he thereby decided that the situations described by it always justify the absence from work. Therefore, a three-day flood or three accidents in a year may also justify the absence from work, but without the right to remuneration.
In any case, the analyzed provision is a regression and introduces chaos. Until now, the law only provided for the justification of absence, but now it also requires the submission of an application. And after the limit of two days is exhausted, the employee will only be able to report their absence without any further justification.
There is one more possibility of interpretation, namely that if the employee submits an application, they will receive remuneration, but if they only justify their absence, they will not. However, it does not seem to be the intention of EU law. Not to mention that obtaining the employer's consent is not easy, as there may be no contact with them. There is no provision in the Labor Code that would suggest that every supervisor has the competence to grant leave.
How can be remedied
Taking the above into account, an attempt must be made to correct the mistakes made by the legislator, to the extent that it is possible.
Firstly, it should be assumed that the provision does not refer to force majeure in the sense in which it is understood in Polish law. It is not about circumstances that cannot be prevented. This means that, for example, a child's accident caused by the employee's fault (due to lack of supervision) or another family member's accident resulting from recklessness will justify the right to not perform duties. It is reasonable to interpret that the Code introduces its own definition of force majeure for the purposes of justifying absence from work in line with EU law. The provision therefore contains a norm stating: "by force majeure, it should be understood as the occurrence of urgent family matters in case of illness or accident, if the immediate presence of the employee is necessary, regardless of whether these situations could have been prevented or not."
Secondly, the word "accident" should be broadly understood and also include weather phenomena such as floods, hurricanes, and hailstorms, and not just incidents directly related to people.
Thirdly, the word "application" should essentially be understood as a prior notification of absence or the need to leave work. If such a possibility is not available, the employee - after considering the risk that his absence poses to the workplace - may leave the workplace on his own.
Fourthly, the employee reports to their supervisor, not the employer. Whether the supervisor has the authority to grant leave or not remains an internal matter of the workplace.
Fifthly, considering that it is a case of force majeure and the urgent need for the employee's presence, the interpretation developed in relation to leave on request regarding the time of reporting absence should not apply. The request, or rather the report of absence, can be made at any time during the working day and in any form. Such an interpretation should also be adopted because the absence may only cover part of the day. The supervisor cannot refuse consent, which further proves that we are not dealing with a request, but with informing the employer about the absence. One can only agree that if the absence of the employee from work would result in irreparable damage (for example, when the only security guard leaves the guarded place), the employer has the right to ask the employee to postpone leaving the workplace until a replacement is provided, i.e. "not to grant leave". However, even in such a situation, the employee's failure to comply with the order will be subject to the court's assessment of whether the employer's instruction was proportionate to the risks and the employee's family situation.
Days or hours
Paragraph 2 states that the employee should decide in the first request for leave whether they will use their time off on a daily or hourly basis. Contrary to the wording of the provision, it must be interpreted rationally. The legislator imagines that a parent going to their child's accident site will submit a declaration to the employer stating in what form they will use their time off in the event of future accidents or natural disasters, if they occur?
This provision is even more irrational because if an employee leaves their workplace during work hours, they cannot use full days off from work. In this sense, they "submit" a leave request by the very fact of leaving their workplace. A rational interpretation requires that the declaration regarding how to use future time off can be supplemented.
Another issue is that the employee's declaration regarding events of unknown nature is highly irrational and of little value. If an employee declares that they will use their leave entitlement in hourly increments, it is still unknown whether they will use it 14 times for one hour each, or twice for 7 hours each. This information is therefore completely worthless.
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