The employer may grant unilaterally overdue leave either on the basis of the Labour Code or the Anti-Covid Act.

In practice, it has been assumed for many years that an employer may grant an employee an outstanding leave without their consent, if it is impossible to agree on such leave with the employee. Sending the employee on vacation must be preceded by an attempt to agree the vacation date. Such a practice is justified, since the employer is obliged to grant the employee the outstanding leave no later than 30 September of the following calendar year under the threat of a petty offense.

In the period of an epidemic threat or an epidemic, the unilateral granting of the outstanding leave is explicitly provided for in Art. 15gc the Act of March 2, 2020 on special solutions related to the prevention, counteraction and combating of covid-19, other infectious diseases and crisis situations caused by them ("anti-covid law"). On this basis, the employer may send the employee on vacation without prior attempt to agree on the date, also without the vacation schedule. The employer may grant this for a maximum of 30 days. If last year the employer granted leave in this manner, this limit will be correspondingly lower.

The special anti-covid regulation should not limit the possibility of granting leave on the basis of the Labour Code. At present, the employer may therefore grant unilaterally overdue leave, both on the basis of the provisions of the Labour Code and the provisions of the anticovid act (taking into account the statutory limit).
 

More in the article by Wojciech Kwiatkowski: "Ustawa antycovidowa a kodeks pracy. W jaki sposób pracodawca może udzielić zaległego urlopu?" for Dziennik Gazeta Prawna (article from 25 March 2021).