The employer, as part of its general duty to ensure safe and healthy working conditions, is obliged to undertake certain occupational safety and health measures with appropriate use of scientific and technological achievements. This obligation is very broad and, in practice, shifts most occupational safety and health responsibilities to the employer. 

However, when working remotely, fulfilment of some of the employer's duties is downright impossible. This has raised the question of whether the employer is responsible for occupational safety and health at all in remote work. Given the wording of the proposed regulations, it should be said that yes, although the scope of its duties and responsibilities is limited.  The legislator explicitly states that in the case of remote work, the employer is exempted from, among other things, the obligation to appoint a coordinator, organize the workplace, ensure the safe and healthy condition of the premises, maintain the standard of the premises, provide hygienic and sanitary facilities and personal hygiene products.

At the same time, as part of OSH responsibilities, the employer is obliged first and foremost to:

• Provide the employee performing remote work with the materials and work tools, including technical equipment, necessary for the performance of remote work;
• Provide for the installation, service, maintenance of work tools, including technical equipment, necessary for the performance of remote work or cover the necessary costs associated with the installation, service, operation and maintenance of work tools, including technical equipment, necessary for the performance of remote work; 
• Provide the employee performing remote work with the training and technical assistance necessary for the performance of such work.

Regardless of the basis for the performance of remote work, the relevant document (agreement with the trade unions, rules and regulations, remote work order, agreement with the employee) should specify, among other things:

• Rules for the employer to cover the costs associated with the installation, service, operation and maintenance of work tools or other costs associated with the performance of remote work;
• Principles of control in the field of occupational safety and health;
• Principles of installation, inventory, maintenance, update of the software and servicing of the work tools entrusted to the employee.

In addition, allowing an employee to perform remote work is subject to the employee's confirmation (on paper or electronically) that safe and healthy conditions for such work are provided at the remote workstation. To make such a statement, the employee should know what conditions are to be considered safe and healthy. Therefore, it is reasonable to regulate in the document on the performance of remote work, for example, the following issues:  

• Setting up the desk and chair in accordance with ergonomic principles;
• Minimum requirements for a display unit;
• The use of lighting that does not strain the eyes;
• The passability of traffic routes - cables, carpets and rugs;
• Separation of the eating area from the work area;
• Regular breaks after every hour worked in front of the computer.

Equipping the employee with tools and materials and reimbursing the costs of organizing remote work
 

Currently, the primary tool for remote work is a computer. Possible entrustment of additional tools, such as a printer or a business phone, should be linked to the specifics of the position and the need to provide them should be considered on a case by case basis. The obligation to provide office furniture, if any, remains an unresolved issue. Neither the wording of the proposed regulations nor the justification of the draft explicitly indicate whether office furniture is part of the “materials and work tools” that the employer is required to provide to the employee. It should be noted here that according to the position of the Ministry of Labour, Development and Technology of 8 January 2021,neither the current, nor the proposed regulations on remote work regulate the issue of the cost of purchasing office furniture. Therefore, in my opinion, it is possible to defend the position that the employer is not obliged to equip the employee with office furniture.

Before deciding to transfer company property, the employer should assess the possibility of offering all employees a comparable number and type of tools to work from home. Indeed, differential access of employees, especially those occupying the same position or having the same responsibilities, to the tools and materials needed to perform remote work may be considered unequal treatment or a manifestation of discrimination.

Occupational risk assessment 
 

The employer should prepare an occupational risk assessment of an employee performing remote work, and this can be a universal assessment for specific job groups. This assessment should take particular account of the impact of remote work on vision, the musculoskeletal system and the psychosocial conditions of this work. While the first two factors are not surprising, the last one is a kind of novelty. This is because the employer should assess how the employee may be affected by possible isolation resulting from remote working conditions. To date, employers have not, as a general rule, analyzed the impact of the work performed on the job on the psyche of employees. The above regulation may therefore have an impact on the practice of conducting occupational risk assessments also for positions where remote work is not performed. 

Based on the results of the occupational risk assessment, the employer is required to develop information including:

• Principles and ways of proper organization of the remote workstation, taking into account the requirements of ergonomics;
• Principles of safe and healthy performance of remote work; 
• Activities to be performed after the remote work is completed; 
• The rules of conduct in emergency situations that pose a threat to human life or health. 

Before being allowed to work remotely, the employee should confirm (on paper or electronically) that he/ she is familiar with the employer's occupational risk assessment and the above-mentioned information, and undertake to comply with them.  

Inspection of compliance with occupational safety and health at the place of performing remote work
 

Under the proposed regulations, the employer has the right to inspect the employee's compliance with occupational safety and health rules and regulations at the place of performing remote work. The performance of inspection activities must not violate the privacy of the employee and others, nor impede the use of the home premises in accordance with their intended use, and its rules should be included in relevant documents.

An occupational safety and health inspection should be carried out by an employee of the employer's occupational safety and health service (only a qualified person can determine whether occupational safety and health rules are actually being followed), and the employee where the inspection is to take place should know who will carry it out and for what purpose. An occupational safety and health officer may only inspect the location designated by the employee from which he/she performs remote work. The prepared inspection report should be submitted to the employer. 

According to the proposed regulations, when the employer, in the course of the inspection, finds deficiencies in compliance with occupational safety and health regulations, it obliges the employee to rectify them within a specified period of time, or revoke the permission for that employee to perform remote work. Therefore, the question arises whether, in view of the above, the employer may additionally impose on the employee a penalty for failure to comply with the occupational safety and health rules and regulations, in accordance with Article 108 of the Labour Code. The proposed regulations do not abrogate employees' disciplinary liability. Thus, in a situation where the employee knew the occupational safety and health rules that he/she should have complied with during the course of remote work, it is possible to impose a penalty on him/her. Especially since, according to the regulations, it is the employee himself/herself who organizes the remote work station.