The government has lifted existing restrictions, including the requirement to wear masks indoors, with some exceptions. However, this does not mean that in companies employees will walk without masks and without the need to disinfect their hands. The employer and his individual assessment of the situation decide on the organization of work. It can therefore set higher safety standards than the applicable requirements.

Effective from Monday, March 28, 2022, the Regulation of the Council of Ministers of March 25, 2022 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of the state of epidemic (Journal of Laws of 2022, item 679) lifted the restrictions introduced in connection with the coronavirus epidemic. And since the regulation of 25 February 2022 (Journal of Laws, item 473) was repealed, the requirement to cover the mouth and nose in public places, including workplaces, if there is more than 1 person in the room, has also been abolished with it,” unless the employer decides otherwise (paragraph 23(1)(2)(.b). Interestingly, at the same time, the government did not abolish either the epidemic, nor did it replace the state of epidemic with a state of epidemic emergency. According to paragraph 1 of the new regulation of the Council of Ministers, it is established that the area where the state of epidemic caused by SARS-CoV-2 virus infections occurred is the territory of the Republic of Poland.

– Employers have the opportunity to set higher safety standards than the applicable requirements. For their maintenance, however, it is crucial how exposure to COVID-19 was included in the occupational risk assessment in a given plant, and in particular whether it was qualified as a threat arising in the work process or resulting from activities performed by employees. That is why we advised our clients to consciously include exposure to this risk factor as an occupational hazard, i.e. only in a situation where employees actually had to deal with this pathogen as part of their duties (e.g. working in health care) – says Marek Maszewski, Director of the Supervision Department of SEKA S.A. He admits that many employers unnecessarily included COVID-19 as a harmful biological factor in the occupational risk assessment,  which entailed numerous bureaucratic obligations, e.g. the need to keep a register of exposed persons, systematic specialist training and the preparation of a plan for dealing with accidents.

According to Marek Maszewski, some employees may oppose maintaining safety rules and restrictions in workplaces, citing the abolition of the requirements to wear masks or maintain distance. But, as he emphasizes, it is not up to employees how restrictions in the workplace will be removed. – The employer and his individual assessment of the situation decide what the organization of work looks like – emphasizes the director of the Supervision Department of SEKA S.A. And adds: – The employer has a lot of freedom regarding the requirement to use masks, disinfection or hybrid work.

According to Paweł Korus, legal advisor, partner at Sobczyk & Associates, former long-time judge of the labour court, the issue of abolishing the obligation to use masks is interesting, because it arouses a lively reaction of employees. – It should be emphasized here that according to Art. 207 par. 2 of the Code of Civil Procedure, the employer is obliged to protect the health and life of employees by ensuring safe and hygienic working conditions with appropriate use of scientific and technological achievements. This means that the employer is obliged to comply not only with health and safety regulations, but also with the so-called good practices, i.e. health and safety rules (cf. Art. 283 par. 1 of the Labour Code). Therefore, the fact that the obligation to wear masks (or disinfection) has been „abolished” does not mean that the employer not only can, but should leave internal regulations in this area – says attorney Paweł Korus.

As he emphasizes, the role of the OHS service is crucial here. – This service performs advisory and control roles – therefore, it is within the scope of its duties to „advise” the employer on solutions regarding the use of masks or disinfection. If, assessing the situation in the plant, epidemiological risks and the specificity of work, it considers that further wearing of masks is recommended, the employer is obliged to introduce such solutions, and employees to continue wearing masks. The issue of internal company regulations regarding the wearing of masks should also be consulted with employee representatives, if the employer has an OHS commission, then within its framework – Art. 237(11a) par. 1 and 5 of the Code of Civil Procedure – explains attorney Paweł Korus. And he claims that the abolition of obligations under the regulation does not exempt the employer from the need to carry out a risk analysis and „maintain” the need to wear masks or disinfection.

Katarzyna Siemienkiewicz, an expert on labour law of Employers of the Republic of Poland, also draws attention to the fact that the regulation abolishes m.in the obligation to wear masks in workplaces and other public places. However, as he says, let’s not forget that the pandemic is not over, especially since the state of epidemic is still in force in the country. In addition, employers, in accordance with the Labor Code, still have responsibility related to OHS. – The employer is obliged to protect the health and life of employees by ensuring safe and hygienic working conditions with appropriate use of scientific and technological achievements. The measures taken to this end must be adapted to the current epidemic situation. Therefore, if there is a significant increase in infections and the employer records cases of illness in his company, he should introduce certain measures to reduce the risk of spreading the virus. The amendment to the regulation does not release the employer from the obligation to adapt the working environment to epidemic conditions – emphasizes Siemienkiewicz. He adds: „We recently celebrated the second anniversary of the pandemic. So far, Polish legislation has not regulated such issues as measuring the temperature of employees or testing for COVID-19. The possibility of performing them is not unambiguous due to the protection of personal data, in this case a special category, concerning health. Interference by the legislator would certainly solve the problem of interpretation, and employers would give specific tools to prevent illness.

In the opinion of Katarzyna Siemienkiewicz, by repealing the provisions of the regulation, we are in even greater chaos. – Apart from the rightness of regulating this matter in the provisions of the regulation, currently employers do not have a legal basis to use tools such as the obligation to wear masks in workplaces. So we have a return to the situation that occurred at the beginning of the pandemic – employers then applied the recommendations of the Labor Inspectorate and CIOp, which had no legal force. However, taught by experience and guided by common sense, employers will be able to apply the existing solutions, which allows them To apply Article 207 of the Labor Code – a general provision on liability in the field of ohs – he says. And he emphasizes that one of such solutions is remote work, which employers can commission on the basis of the covid special act.

Robert Lisicki, director of the Department of Labor of the Lewiatan Confederation, confirms that this issue is being discussed in companies – Since Monday, the regulation of the Council of Ministers has been repealed, which indicated the obligation to cover, with a mask, mouth and nose in workplaces, unless the employer decided otherwise. The issue of covering the mouth and nose with masks was therefore the subject of a generally applicable provision. Currently, the state of the epidemic has been maintained, while the obligation to cover the mouth and nose in workplaces has been abolished. This obligation has been temporarily maintained in buildings where medical activities are carried out and in pharmacies. Employers are left with recommending, recommending wearing masks in the workplace, if they state such a need – emphasizes Robert Lisicki.

Source: https://www.prawo.pl/kadry/pracodawca-moze-wymagac-noszenia-maseczki,514294.html

Projekt otrzymał dofinansowanie z Norwegii poprzez Fundusze Norweskie 2014-2021, w ramach programu „Dialog społeczny – godna praca”.